Goodleaf v Tzivos Hashem, Inc.

[*1] Goodleaf v Tzivos Hashem, Inc. 2008 NY Slip Op 50555(U) [19 Misc 3d 1104(A)] Decided on March 18, 2008 Supreme Court, Kings County Starkey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 18, 2008
Supreme Court, Kings County

Mark Goodleaf, Plaintiff,

against

Tzivos Hashem, Inc., and H & H BUILDERS, INC., Defendants. TZIVOS HASHEM, INC., Third Party Plaintiff, DANNA EQUIPMENT CORPORATION and ARNOLD STEEL COMPANY, Third Party Defendants. H & H BUILDERS, INC., Second Third Party Plaintiff, ARNOLD STEEL COMPANY, DANNA EQUIPMENT CORP., and TOTAL SAFETY, Second Third Party Defendants.



32625/2002



For Plaintiff(s):

FORTUNATO & FORTUNATO, PLLC.

26 Court Street, Suite 1301

Brooklyn, New York 11241

For Defendant/First Third Party Plaintiff: Tzivos Hashem, Inc.

ZAKLUKIEWICZ, PUZI & MORRISSEY, LLP.

2701 Sunrise Highway, Suite 2

Islip Terrace, New York 11752

For Defendant/Second Third Party Plaintiff: H & H Builders, Inc.

EPSTEIN & McDONALD, ESQS.

One Whitehall Street

New York, New York 10004-2109

For First & Second Third Party Defendant: Danna Equipment Corp.

BARRY, McTIERNAN & MOORE

2 Rector Street, 14th Floor

New York, New York 10006

For First & Second Third Party Defendant: Arnold Steel Company

HARRINGTON, OCKO & MONK, LLP.

81 Main Street, Suite 215

White Plains, New York 10601

For Second Third Party Defendant: Total Safety

QUIRK & BAKALOR, P.C.

845 Third Avenue, 15th Floor

New York, New York 10022

James G. Starkey, J.

Plaintiff commenced this action for personal injuries on August 15, 2002 by filing a summons and verified complaint. The complaint alleges one cause of action for violations of Labor Law § 200, § 240(1), § 241(2), and § 241(6), against the owner and another cause of action for the same violations against the general contractor. Issue was joined by service of a verified answer dated October 18, 2002 by defendant owner Tzivos Hashem, Inc. (hereinafter "Tzivos"), and by service of a verified answer dated November 1, 2002 by defendant general

contractor H & H Builders, Inc. (hereinafter "H & H"). Tzivos thereafter commenced a third party action against Danna Equipment Corporation [FN1] (hereinafter "Danna"), and plaintiff's employer, Arnold Steel Company (hereinafter "Arnold"), seeking indemnification and contribution. H & H also commenced a second third party action for indemnification and contribution against Danna and Arnold, as well as a concern named Total Safety, the job site safety consultants.

[*2]THE MOTIONS

On May 30, 2007, third party defendant Danna successfully moved for summary judgment seeking dismissal of all causes of action and claims asserted against it in both third party complaints. On July 10, 2007, third party defendant Total Safety moved for summary judgment seeking dismissal of all causes of action and claims asserted against it in the second third party complaint, claiming it had no contractual authority to direct, supervise or contract the work being performed. On the same day, third party defendant Arnold moved for summary judgment seeking dismissal of all causes of action and claims in both third party complaints alleging that plaintiff did not suffer a "grave injury" pursuant to § 11 of the Worker's Compensation Law. On July 11, 2007, defendant Tzivos moved to amend the third party complaint for a second time to add a separate cause of action for contractual indemnification and contribution against third party defendants Arnold and Danna, as well as for summary judgment dismissing plaintiff's complaint and all cross claims asserted against it.

On October 30, 2007, plaintiff filed his note of issue and on November 5, 2007, defendant/second third party plaintiff H & H moved seeking to amend its answer to assert a cross claim against Tzivos for breach of contract, and to amend its second third party complaint to assert a contractual indemnification claim against Arnold and separate breach of contract claims against Danna and Total Safety. On the same day, plaintiff moved for partial summary judgment on liability based on his Labor Law § 240(1) claim.

THE FACTS

On or about March 29, 2001 third party defendant Arnold Steel Co. (hereafter "Arnold") and the Jewish Children's Museum (hereafter "JCM"), the representative and alter ego of defendant Tzivos Hashem, Inc. (hereafter "Tzivos"), agreed upon the language of a letter of intent containing the contents "of a formal agreement to be executed between the Parties" relating to construction work to be done at the museum, 792-96 Eastern Parkway, Brooklyn. The letter of intent incorporated by reference a provision providing for "indemnification to the fullest extent permitted by law in favor of the owner." Though the letter of intent was never signed by a representative of Arnold, the terms of the letter of intent were substantially completed in virtually all respects.

Then on June 5, 2001, plaintiff was working under the sole direction and supervision of Arnold at the job site, where he was injured when a sledge hammer fell and struck his head. The sledge hammer fell when a co-worker, attempting to hit a steel bolt to further fasten a beam on the fifth floor, let it slip out of his hands, and drop through an uncovered opening between the floor beams to the first floor. There, it bounced into a stairwell shaft between the first floor and basement. Plaintiff was in the basement near the shaft at the time wearing his personal hard hat which was substantially damaged by the falling tool.

Just before the accident, plaintiff was searching the basement level for a metal "shim" to align a beam on the second floor. When the sledge hammer struck him, he fell to the ground and was knocked unconscious for several minutes. There was testimony disputing whether or not a safety guard had been installed covering the stairwell opening on the first floor and whether or not, prior to the accident, third party defendant Total Safety had advised defendants of a requirement for a safety guard over the stairwell. There was also disagreement as to whether [*3]construction had progressed far enough to bring into application a requirement that under- flooring be installed on the upper floors.[FN2]

LAW AND APPLICATION

The Motions to Amend

As to the motion of defendant H & H to amend its answer to assert a cross claim for contractual indemnification and contribution against defendant Tzivos, leave to amend should be freely given where "the opponent is not surprised or prejudiced by the proposed amendment and the proposed amendment appears to be meritorious." Paolano v Southside Hosp., 3 AD3d 524, 771 NYS2d 152 (2nd Dept. 2004); CPLR § 3025. In support, defendant H & H annexes a copy of the contract dated April 5, 2001 between defendants H & H and Tzivos. The contract does not contain specific indemnification language, but paragraphs forty-four and forty-nine place affirmative duties on both the owner and general contractor to "mutually require all trade contractors to provide insurance. . . naming [H & H] and Owner as additional insured." Defendant H & H claims that Tzivos breached the duty imposed by those paragraphs and did not require Arnold to provide insurance naming both H & H and Tzivos. The claim appears to be meritorious and neither surprising nor prejudicial to defendant Tzivos since defendant Tzivos was at all times aware of the nature and extent of its contractual obligations. The motion by defendant H & H for leave to amend its answer as against defendant Tzivos is therefore granted. See Murray v City of New York, 43 NY2d 400, 401 NYS2d 773, 372 NE2d 560 (1977); Brunetti v City of New York, 286 AD2d 253, 728 NYS2d 665 (1st Dept. 2001).

The same, however, cannot be said for the motion of defendant H & H to amend the third party complaint for contractual indemnification as against third party defendants Arnold, Danna and Total Safety. With respect to Arnold, and in support of the requested relief, H & H annexes a copy of a one page agreement with Arnold dated June 8, 2001, which purportedly requires Arnold to hold H & H harmless and indemnify H & H for any loss or damage sustained as a result of injury to Arnold's employees while working at the JCM. This agreement was executed three days after plaintiff's accident, and does not contain any retroactive effective date.

Worker's Compensation Law § 11, as amended in 1996, bars a third party action for contribution or indemnification against an employer when its employee is injured in a work-related accident, unless the employer entered into a written agreement providing for contribution and indemnification prior to the accident or occurrence, or plaintiff suffers a "grave injury" as defined in the statute. See Guijarro v. V.R.H. Construction Corp., 290 AD2d 485, 736 NYS2d 397 (2nd Dept. 2002). Parties to such an agreement are free to make the effective date of the agreement a date prior to the date of plaintiff's accident. See Stabile v. Viener, 291 AD2d 395, 737 NYS2d 381 (2nd Dept. 2002). However, such an agreement must be "clear and unambiguous [*4]on its face." See Pena v. Chateau Woodmere Corp., 304 AD2d 442, 444, 759 NYS2d 451 (1st Dept. 2003). Such clear and unambiguous language, indicative of the intent that the contract bind retroactively is absent from the proffered agreement herein. Therefore, the motion by defendant H & H for leave to amend its third party complaint as to third party defendant Arnold is denied.[FN3]

Defendant Tzivos also seeks leave to amend its third party complaint — for a second

time — to assert claims for contractual indemnification and contribution against third party defendants Arnold and Danna. As to Arnold, as noted above, Tzivos has proffered a letter of intent which incorporates by reference a Standard Form of Agreement which provides for indemnification to the fullest extent permitted by law in favor of the owner. Neither the letter of intent nor the Standard Form Agreement are signed by a representative of Arnold, the party sought to be bound by its terms and conditions. To deal with that circumstance, Tzivos submits a "Mutual Release and Agreement" between JCM and Arnold dated January 30, 2002 (over six months after plaintiff's accident), the terms and conditions of which incorporate and ratify the unsigned letter of intent. Based upon the pleadings and those documents, Tzivos argues that Arnold agreed to indemnify Tzivos since (1) JCM and Tzivos are admittedly "related entities" and "owners" of the premises; (2) Arnold performed the work and signed the release which incorporates and ratifies the letter of intent, and (3) Arnold procured insurance for both Tzivos and JCM..

The reasoning is flawed in two important aspects. First, it requires the court to ignore the very plain language of the release which is broad enough to encompass the proposed claim.[FN4] Second, it would require this court to hold Tzivos, admittedly JCM's alter ego, entitled to the benefits of the release without its concomitant burden. Specifically it would allow Tzivos to use the release as a sword to assert its claim, but not be subject to the terms and conditions releasing a bargained for shield in the possession of Arnold. See Avildsen v. Prystay, 171 AD2d 13, 574 NYS2d 535 (1st Dept. 1991). Therefore, that branch of the motion by Tzivos which seeks leave to amend its third party complaint against Arnold is denied. Since Danna is no longer involved, that branch of the motion is also denied as moot.

The Summary Judgment Motions

As noted above, summary judgment motions have been made by plaintiff, Tzivos, Total Safety, and Arnold. Summary judgment is a drastic remedy, and should be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting [*5]evidence in admissible form demonstrating the absence of any material facts. Giuffrida v. Citibank, 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. Prospect Hospital, supra , at 324.

Plaintiff's Motion for Summary Judgment Against Defendants Tzivos and H & H

Plaintiff seeks summary judgment solely on his cause of action based upon Labor Law

§ 240(1), which reads as follows:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Plaintiff avers that the sledge hammer was a "falling object" which was inadequately secured. Plaintiff further alleges that defendants either failed to provide "adequate netting" or no netting at all to cover the stairwell shaft near the area in the basement where he was struck and that the failure to provide the netting was the proximate cause of his injury. "On a claim pursuant to Labor Law § 240(1), a claimant must prove both that the statute was violated and the violation was a proximate cause of his injuries. See Bland v. Manocherian, 66 NY2d 452(1985 ); Lightfoot v. State of New York, 245 AD2d 488 ( 2d Dep't 1997 ); Skalko v. Marshall's Inc., 229 AD2d 569 (2d Dep't 1996).

However, not every worker who falls at a construction site and not every object that falls on a worker creates a course of action pursuant to the extraordinary protections of Labor Law

§ 240(1). For liability to attach, the hazard must have been one contemplated in § 240(1) coupled with the failure to use, or the inadequacy of, a safety device such as those enumerated in the statute. See Narducci v. Manhassett Bay Assoc., 96 NY2d 259, 267, 727 NYS2d 37, 750 NE2d 1085 (2001). Since not every object that falls gives rise to protection, a "plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute." See Francis v. Foremost Contr. Corp. ___ AD3d ____, 2008 NY Slip Op. 00224 (2nd Dept. 1-15-2008), citing, Narducci v. Manhassett Bay Assoc., 96 NY2d at 268. Since the sledge hammer was "in use" at the time it slipped from the hands of plaintiff's co-worker — and not while being "hoisted or secured" — it cannot be said to be the type of situation where one of the enumerated safety devices would have been necessary, or even expected. Therefore, it was a general hazard of the workplace, and not one contemplated by Section 240(1). See Narducci vs. Manhassett Bay Assoc., 96 NY2d at 268-269. Therefore, plaintiff's motion is denied and to the extent that the complaint is predicated upon § 240(1), in the Court's discretion that claim is severed and dismissed as against both defendants. See Galvan v. Triborough Bridge and Tunnel Auth., 29 AD3d 517, 814 NYS2d 256 (2nd Dept. 2006).

[*6]Defendant Tzivos' Motion for Summary Judgment Against Plaintiff

Defendant Tzivos seeks summary judgment dismissing plaintiff's complaint which asserts one cause of action against Tzivos alleging violations of Labor Law § §200, 240(1), 241(2) and 241(6). Considering first plaintiff's Labor Law § 200 claim, it must also be severed and dismissed as to defendant Tzivos. Labor Law § 200 is a codification of the common law duty to provide workers with a safe work environment. If the allegedly dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, liability does not attach under the common law or Labor Law § 200. See Kwang Ho Kim v. D & W Shin Realty Corp., ___ AD3d ____, 2008 NY Slip Op. 00090 (2nd Dept.1-8-08). Tzivos is therefore entitled to summary judgment, since the evidence establishes that all direction and control over plaintiff's work came from Arnold employees. Kwang Ho Kim v. D & W Shin Realty Corp., supra .

Tzivos also urges that summary judgment should be granted as to plaintiff's Labor Law

§ 241(6) claim for failure to allege, either in the complaint or the verified bill of particulars, a sufficiently specific violation of the Industrial Code of the New York State Department of Labor. See Comes v. New York State Electric and Gas Corp., 82 NY2d 876, 609 NYS2d 168, 631 NE2d 110 (1993). A review of the bill of particulars reveals that plaintiff alleged violations of 12 N.Y.C.R.R. 23-1.2(a), 12 N.Y.C.R.R. 23-1.5(a), 12 N.Y.C.R.R. 23-1.7(a)(1), 12 N.Y.C.R.R. 23-1.7(a)(2), 12 N.Y.C.R.R. 23-1.2(a), 12 N.Y.C.R.R. 23-1.19, 12 N.Y.C.R.R. 23-1.30, and 12 N.Y.C.R.R. 23-1.33(a)(1), (2) and (3). In opposition to the motion, plaintiff annexes an expert affidavit focusing on violations of 12 N.Y.C.R.R. 23-1.7(a)(1) and 12 N.Y.C.R.R. 23-2.05(a)(1). While the latter is not alleged in either the complaint or bill of particulars, the former is alleged

and specific enough to sustain a Labor Law § 241(6) claim.[FN5] See Amato v. State of New York, 241 AD2d 400, 660 NYS2d 576 (1st Dept. 1997).

Defendant Tzivos further asserts that even assuming 12 N.Y.C.R.R. 23-1.7(a)(1) is sufficiently specific, it is inapplicable to this matter, since plaintiff was not in an area that is normally exposed to falling objects or materials and the regulation only applies to such an area. See Buckley vs. Columbia Grammar & Preparatory, 44 AD3d 263, 271, 841 NYS2d 249(1st Dept. 2007). In the Buckley case, plaintiff was injured when a nail-like spike, unexpectedly and improperly protruding from the wall of an elevator shaft, punctured the counterweight frame during a test run of an elevator platform, causing five of the counterweights to fall out of the compartment housing them. One or more of the counterweights struck plaintiff. The court held that "plaintiffs failed to establish that the work involved a significant inherent risk attributable to an elevation differential, that the injury was the foreseeable consequence of failure [*7]to provide proper protective devices of the type enumerated in the statute, or that the counterweights that fell on the worker constituted a load being hoisted or that required securing within the contemplation of the statute." Id. at 269.

With construction work in progress above where plaintiff was working at the foot of a staircase, it is concluded that plaintiff was in an area that is normally exposed to falling objects or materials and that 2 N.Y.C.R.R. 23-1.7(a)(1) is applicable to the facts of this case. Accordingly, it is for the jury to decide whether a falling object like the sledge hammer was foreseeable and whether or not the operation or conduct at the work site was reasonable and adequate under the particular circumstances of this case. See Amerson v. Melito Constr. Corp.AD3d, 845 NYS2d 457 (2d Dep't 2007). Therefore, Defendant Tzivos motion to dismiss plaintiff's Labor Law § 240(6) claim is denied.

Plaintiff's claim pursuant to Labor Law § 241(2)[FN6] appears to be a viable cause of action, see,e.g., Vignogna v. 170 E. 83rd Realty, 26 AD2d 429, 275 NYS2d 49 (1st Dept. 1966), aff'd, 286 NY2d 932, 286 NYS2d 283, 233 NE2d 296 (1967). Since an issue of fact exists concerning whether covering of the floors above the basement complied with the law, the motion of defendant Tzivos is denied.

Summary Judgment for Third Party Defendant Total Safety as to the Third Party Complaint of Defendant H & H.

The third party complaint alleges a cause of action for common law contribution as well as a cause of action for common law indemnification by defendant H & H against Total Safety. In support, Total Safety annexes a copy of its two page agreement with H & H [FN7] and also relies on Doherty v. City of New York, 16 AD3d 124, 791 NYS2d 523 (1st Dept. 2005). In that case, the Court affirmed a grant of summary judgment to Total Safety, a third party defendant therein, upon a finding that Total Safety "did not direct, supervise or control plaintiff or his co-workers." Doherty v. City of New York, supra at 125.

Pursuant to the terms of the contract here, Total Safety was charged with a duty to "provide advice, guidance, and support to the owner and project manager via telephone on matters related to loss control, safety management, and accident prevention." Further, Total Safety agreed to conduct weekly inspections of the job site for compliance with applicable safety codes and standards, as well as weekly safety meetings, with the findings to be discussed with a contractor representative. Total Safety also agreed to conduct weekly safety meetings with subcontractor representatives to discuss, inter alia, current and future safety issues. Though Total Safety had no authority over "decision or actions affecting . . . . the correction of hazardous conditions,"and had limited authority only "to advise and make recommendations," there appear to be factual issues concerning whether or not Total Safety fulfilled its contractual obligation of advising H & H of the placement of appropriate protective devices around the job site, and more [*8]particularly over the shaft where the sledge hammer fell. Further, Total Safety's report ofMay 21, 2001 contained a recommendation to cover the floors above the basement level, in compliance with Labor Law § 241(2). An issue exists as to whether noncompliance with this recommendation, which apparently continued to the day of the accident, was again discussed at the next safety meeting on May 28, 2001.

Since Total Safety's contractual obligation, if breached, created a common law duty of indemnification, summary judgment is denied. In addition, H & H's motion to amend the third party complaint to allege a breach of contract claim against Total Safety is granted. This result is not inconsistent with Doherty v. City of New York, supra , since here — unlike the Doherty case — there appears to be "evidence that [Total Safety] acted negligently or otherwise unreasonably as the site safety consultant." Id. At 125.

Summary Judgment Motions By Third Party Defendant Arnold

Arnold seeks summary judgment dismissing both third party complaints asserted against it on the basis of § 11 of the Worker's Compensation Law. In support, Arnold annexes plaintiff's deposition testimony, plaintiff's medical records, reports of independent medical examinations, and plaintiff's verified bill of particulars. Arnold claims that the head trauma sustained by plaintiff is not a "grave injury" as plaintiff has the capacity to return to gainful employment "in any capacity." Rubeis v. Aqua Club, 3 NY3d 408, 417, 788 NYS2d 292, 821 NE2d 530 (2004). It is clear from plaintiff's own testimony, and the records and reports provided, that plaintiff was cleared by his own physicians to resume limited gainful employment several months after the accident and full time gainful employment by 2003. Therefore, Arnold has made a prima facie case.

In response to this prima facie showing, plaintiff has and third party plaintiffs have failed to raise a triable issue of fact. See DePaola v. Albany Medical College, 40 AD3d 678, 834 NYS2d 866 (2nd Dept. 2007). Therefore, third party defendant Arnold's motion is granted and both third party complaints against Arnold are dismissed.

Third party defendant Arnold is directed to settle an Order on notice in accordance with this decision. The order to be settled should also amend the caption of this matter in

accordance with this decision, as well as the prior decision of this court dated September 19, 2007.

____________________________

J. S. C. Footnotes

Footnote 1: Danna Equipment Corporation, a sub-contractor, is no longer a party to this matter, having been previously granted summary judgment on September 19, 2007.

Footnote 2: Labor Law §241 reads in relevant part as follows: All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: . . . . 2. If the floors are not to be filled in between the beams with brick or other fireproof material, the under flooring shall be laid on each story as the building progresses.

Footnote 3: That part of H & H's motion to amend the third party complaint seeking to add a cause of action for breach of contract against Danna is also denied as moot and as to Total Safety, is discussed below.

Footnote 4: Paragraph seven states that JCM and Arnold "respectively release and forever discharge the other, and their respective officers, ... and all others related to the Project, from any and all debts, liabilities, ... causes of action, claims and demands whatsoever, in law or in equity, relating to the Contract and Project, which against the other, JCM and [Arnold] had, now have, or hereinafter may have..."

Footnote 5:12 NYCRR 23-1.7. Protection from general hazards. (a) Overhead hazards. (1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

Footnote 6: See footnote 2, supra .

Footnote 7: The "contract" is an unsigned proposal. Nevertheless, H & H has not denied signing the proposal nor objected to the terms and conditions contained therein. In fact, H & H relied upon a copy of the proposal in their opposition papers dated October 2, 2007 as Exhibit "E."