Devito v Goldman Sachs Group, Inc.

Annotate this Case
[*1] Devito v Goldman Sachs Group, Inc. 2008 NY Slip Op 50415(U) [18 Misc 3d 1142(A)] Decided on January 14, 2008 Supreme Court, New York County James, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 14, 2008
Supreme Court, New York County

Ralph Devito and Diane Devito, Plaintiffs,

against

The Goldman Sachs Group, Inc., GSJC Land LLC, Turner Construction Company, and Total Safety Consulting Company, Defendants.



109286/04



Plaintiff's Counsel:

Edelman & Edelman, PC

61 Broadway - Suite 3010

New York, NY 10006

212 943 1200

Defendant's Counsel:

Wilson Elser Moskowitz Edelman & Dicker, LLP

150 East 42nd Street, 23rd Floor

New York, NY 10017

212 490 3000

Debra A. James, J.



This action arises out of a construction accident that occurred on November 17, 2003, at defendant Goldman Sach's Jersey City, New Jersey office building which was then under construction. As plaintiff was working on an extension ladder on the 28th floor of the building, the ladder allegedly skidded out from underneath plaintiff causing plaintiff to fall to the floor sustaining injuries. Plaintiff alleges that the ladder was defective insofar as it lacked feet or cleats to prevent it from skidding.

Plaintiff at the time of the accident was employed by subcontractor Component Assembly Systems. The Goldman Sach's defendants are the owners of the premises. Turner Construction was the general contractor on the construction project. Total Safety was the safety consultant on the project. Defendants move for summary judgment dismissing the complaint and plaintiff cross-moves for sanctions predicated upon defendants' alleged failure to comply with their discovery obligations under orders of this court. With respect to defendants' liability, the parties agree that New Jersey law governs.

As applicable to this action, "[u]nder New Jersey case law, which the parties agree controls, the question whether a defendant owes a duty to a plaintiff in tort turns on numerous factors, including the foreseeability of the risk, the parties' relationship (which in this context necessarily entails defendants' observation of existing conditions and the actual performance of the work undertaken by the workers at the site), and the extent to which defendants had the opportunity and capacity to avoid the risk of harm (see Carvalho v Toll Bros. & Devs., 143 NJ 565, 572-576, 675 A2d 209, 212-214 [1996])." Barnett v Port Authority of New York and New Jersey, 40 AD3d 325 (1st Dept 2007). Further, "[a]lthough the courts of both New York and New Jersey recognize a common-law duty on the part of a [*2]property owner or general contractor to provide a reasonably safe work place, such duty does not exist apart from the owner's or contractor's supervision or control over the work with respect to which it is asserted." Coyne v 101 Hudson Street Urban Renewal Associates, 256 AD2d 48 (1st Dept 1998) (citations omitted). Citing New Jersey law the Court has stated "a New Jersey property owner owes a duty of ordinary care to provide the worker with a reasonably safe workplace. The owners' fault must be established, and the worker's contributory negligence is a defense. Also, the degree of control and participation by the owner in the performance of the work is a major consideration in assessing his negligence. Significantly, an owner bears no responsibility for injury sustained by an employee as a result of the very work the employee was hired to perform." Webber v Mutual Life Ins. Co. of New York, 287 AD2d 369, 370 (1st Dept 2001) (citations and internal quotations omitted).

With respect to the Goldman Sachs defendants, plaintiff has adduced no evidence that the owners controlled or directed the work. There is no evidence that Goldman Sachs in any way supervised or directed the work performed by plaintiff or provided plaintiff with the defective ladder. Nor is there any evidence that Goldman Sachs had any general responsibility for safety at the jobsite. Therefore, Goldman Sachs owed no legal duty to the plaintiff. See Slack v Whalen, 327 NJ Super 186, 194, 742 A2d 1017, 1021 (NJ Super Ct App Div 2000) ("Given the nature of the risk, the lack of foreseeability of that risk, and the relationship between plaintiff and defendants, which in no way implicated worker-safety concerns or suggested that defendants had the capacity to control plaintiff's performance, we conclude, as a matter of fairness and policy,' that defendants had no legal duty to exercise reasonable care for plaintiff's safety at the worksite.").

Similarly there is no evidence that either Turner or Total Safety directed or controlled the plaintiff's work or tools at the time of the accident. However, plaintiff argues that the issue on liability is not whether the defendants controlled plaintiff's work, but whether the defendants had a duty to and failed to correct an unsafe condition; that is the use of a ladder that lacked feet that would have prevented the ladder from slipping and causing plaintiff's accident.

Plaintiff relies on Barnett to argue that Turner and Total Safety owed a duty to the plaintiff with respect to the condition of the ladder. The trial court decision in the Barnett case (2006 NY Slip Op 50888[U], 12 Misc 3d 1154[A], Sup Ct, NY County 2006) relied upon the New Jersey Supreme Court's decision in Carvalho. In Carvalho, the Court found that whether or not a duty should be imposed upon a defendant in connection with a construction accident is a legal determination that should be [*3]based upon factors including the forseeability of the harm, the relationship of the parties as to a defendant's participation in the work at the construction site, a defendant's control over the work performed at the time of the accident, and the defendant's knowledge of an unsafe condition. Carvalho, 143 NJ at 572-577. The Court in applying these factors held that "an engineer has a legal duty to exercise reasonable care for the safety of workers on a construction site when the engineer has a contractual responsibility for the progress of the work but not for safety conditions yet is aware of working conditions on the construction site that create a risk of serious injury to workers." Id. at 569. The Court based its holding upon the fact that the "engineer had sufficient control to halt work until adequate safety measures were taken. There was a sufficient connection between the engineer's contractual responsibilities and the condition and activities on the work site that created the unreasonable risk of serious injury. . . In sum, the engineer had the opportunity and was in a position to foresee and discover the risk of harm and to exercise reasonable care to avert any harm." Id. at 577-578.

Similarly the New Jersey Supreme Court has held that "a general or prime contractor has a duty to assure the safety of an employee of a subcontractor" and that under certain circumstances that "duty encompasses the safety of equipment supplied by the subcontractor and used by its employee at the contractor's work site." Alloway v Bradlees, Inc., 157 NJ 221, 225, 723 A2d 960, 962 (1999). Applying Alloway, courts have said that "a contractor has a duty to maintain the premises on which it performs work in a reasonably safe condition for persons who the contractor may reasonably expect to come onto the site. The discharge of this duty includes the performance of reasonable inspections to ensure that the construction site is in a safe condition." Raimo v Fischer, 372 NJ Super 448, 453, 859 A2d 709, 712 (NJ Super Ct App Div 2004).

Here, Turner and Total both were on the jobsite at the time of the accident and exercised control over the project and the safety of the worksite. While there is testimony that the defendants delegated the task of equipment inspection to plaintiff's employer, there is also evidence, based upon written manuals, that defendants assumed this task themselves. Consequently, there are issues of fact as to whether Total Safety and Turner breached their duty to the plaintiff, the employee of a subcontractor, to provide a safe workplace based upon Alloway and Carvalho.

Finally, the court shall deny plaintiff's motion to strike the answer for defendants failure to disclose.

Plaintiff argues that the defendants' search for and production of documents relevant to the project and accident has [*4]been insufficient. Specifically, plaintiff's seek daily logs, accident reports, reports of defective or unsafe equipment, and other documents containing rules, protocols and directives relating to site safety and equipment. Defendants have provided an affidavit and deposition of the person who conducted the search in accordance with the discovery orders of this court, wherein she states that she examined the project documents placed in storage boxes in a storage facility to which they were transferred upon completion of the project, as well as document logs of archived filed boxes, and the computer network, but was unable to locate any of the records in question.

Plaintiff has not established that defendants failure to locate the documents was willful and contumacious. Tawedros v St. Vincent's Hospital, 281 AD2d 184 (1st Dept 2001); Palmenta v Columbia University, 266 AD2d 90, 91 (1st Dept 1999). Furthermore, in producing the person who conducted the search for an examination before trial at which the plaintiff had the opportunity to elicit details about her efforts, defendants have complied with the Order of June 28, 2006 (Richter, J.) that directed defendants in the alternative to "provide a definite affidavit as to specific steps taken to locate documents and an explanation of why each requested document cannot be located within 45 days." See Swetnick v Klein, 246 AD 261 (1st Dept 1936). Therefore, the court shall deny plaintiff's cross-motion. However, this order is without prejudice to plaintiff requesting at trial an instruction for a negative inference in connection with the probity of the lost records on the issue of notice.

Therefore, it is

ORDERED that defendants' motion for summary judgment is GRANTED only to the extent of DISMISSING the complaint against defendants THE GOLDMAN SACHS GROUP, INC., and GSJC LAND LLC, and the Clerk is directed to enter judgment in favor of THE GOLDMAN SACHS GROUP, INC., and GSJC LAND LLC, dismissing the complaint; and it is further

ORDERED that defendants' motion for summary judgment is otherwise DENIED; and it is further

ORDERED that plaintiffs' cross-motion is DENIED; and it is further

ORDERED that the remaining parties are directed to attend a pre-trial conference in IAS Part 59, Room 1254, 111 Centre Street, New York, NY 10013, on February 14, 2007, at 2:30 P.M. to set a trial date.

This is the decision and order of the court.

January 14, 2008Supreme Court Justice Debra A. James [*5]

Plaintiff's Counsel:

Edelman & Edelman, PC

61 Broadway - Suite 3010

New York, NY 10006

212 943 1200

Defendant's Counsel:

Wilson Elser Moskowitz Edelman & Dicker, LLP

150 East 42nd Street, 23rd Floor

New York, NY 10017

212 490 3000