Endall v Sublink Ltd.

[*1] Endall v Sublink Ltd. 2008 NY Slip Op 52109(U) [21 Misc 3d 1120(A)] Decided on October 16, 2008 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2008
Supreme Court, Kings County

Douglas Endall, Plaintiff,

against

Sublink Ltd. and the RBA Group, Defendants.



31046/2004

Wayne P. Saitta, J.

Defendant THE RBA GROUP, (hereinafter"RBA"), moves this Court for an Order pursuant to CPLR Rule 3212 and/or 3211 dismissing Plaintiff's complaint and all cross claims filed against it and for summary judgment on its claim for common law indemnification against Defendant SUBLINK. Defendant SUBLINK LTD., (hereinafter "SUBLINK"), moves this court for an Order dismissing the complaint pursuant to CPLR § 3216 on the grounds that Plaintiff failed to provide court ordered discovery, and pursuant to § 3211 for Summary Judgment, dismissing the complaint and all cross claims against it with prejudice.

Upon reading the Notice of Motion for Summary Judgment of Frederick D. Schmidt, Jr., Esq., attorney for Defendant, THE RBA GROUP, dated December 19th, 2007, together with the Affirmation in Support of Motion by Frederick S. Schmidt, Jr., dated December 19th, 2007, and all exhibits annexed thereto; the Notice of Motion of James S. Andes, Esq., attorney for Defendant, SUBLINK LTD, dated April 23rd, 2008, together with the Affirmation in Support and Partial Opposition by James S. Andes, dated April 23rd, 2008, and all exhibits annexed thereto; the Reply Affirmation of Frederick D. Schmidt, Jr., dated May 9th, 2008 and all exhibits annexed thereto; the Affirmation in Opposition to the Motions For Summary Judgment by Sublink and RBA, of Michael C. Meyerson, Esq., attorney for Plaintiff, DOUGLAS ENDALL, dated May 21st, 2008 and all exhibits annexed thereto; the Reply Affirmation of James S. Andes, dated June 6th, 2008; the Reply Affirmation of Frederick D. Schmidt, Jr., dated June 19th, 2008; and after [*2]argument of counsel and due deliberation thereon, RBA's motion for Summary Judgment is granted in part and SUBLINK's motion for Summary Judgment is denied for the reasons set forth below.

FACTS

Plaintiff seeks compensation for losses sustained while he was working on a Department of Transportation, (hereinafter "DOT"), project in the Brooklyn Battery Tunnel when a metal grate fell upon his foot causing him to sustain injuries.

Plaintiff was employed by "Railworks", the general contractor hired by the DOT. SUBLINK was a sub-contractor. RBA was hired by the DOT to provide inspection services to the project, engineering services for survey, street design, structural design, inspection, shop drawing review, value engineering, construction inspection and constructability review activities. There is no evidence that they supervised or controlled the workers and no one employed by RBA was on site at the time of the incident.

Plaintiff was holding a metal grate at a 90 degree angle to the ground while an employee of SUBLINK, William Schuyler, welded the grate in place. The grate weighed approximately 300-350 lbs. While Plaintiff held the grate, Schuyler went to get a shim and tripped and fell over the welding lead, causing him to fall into the grate. This caused Plaintiff to drop the grate he was holding and it thereafter fell on Plaintiff's foot.

ARGUMENTS

RBA argues that since it was not an owner or general contractor, it is not liable under Labor Law sections 240(1) and 241(6), and that because it was not supervising the work and was not even at the site at the time of the accident, it cannot be held liable under Labor Law §200 or common law negligence.

RBA further argues that the accident was not a gravity related one so that §240(1) is not applicable. It also asserts that none of the Industrial Code violations alleged by Plaintiff are applicable or specific enough to sustain a cause of action under §241(6).

RBA also argues that it should any liability be found against it that it is entitled to common law indemnification by Sublink whose employees were present at the time of the accident and directed, supervised or controlled Plaintiff's work at the time of the accident.

SUBLINK moves to strike Plaintiff's complaint for failure to provide Court ordered discovery. SUBLINK further seeks summary judgment as to Plaintiff's claims against it.It argues that the accident was not height related, that the Industrial Code violations alleged under Labor Law §241 are inapplicable, and that a claim under Labor Law §200 cannot lie as it was Plaintiff who directed William Schuyler's work. SUBLINK opposes RBA's motion for summary judgment on its cross-claim for indemnification against SUBLINK, and in turn seeks summary judgment dismissing this cross-claim. SUBLINK asserts that it had no contractual relationship with RBA and therefore RBA's claim for indemnification cannot lie.

Plaintiff opposes each Defendant's motion arguing that SUBLINK's motion is untimely and that there has been a stay on discovery which prevented it from complying with the Order to provide discovery. Plaintiff further opposes SUBLINK's motion arguing that SUBLINK was the sub-contractor which installed the grate and it was its employee's negligence that caused the accident and therefore is liable for Plaintiff's loss.

Plaintiff argues that both Defendants are liable for failing to comply with Labor Law §240(1) as they failed to provide safety devices to secure the metal grate, which amounted to a [*3]gravity related risk. Plaintiff further argues that its claims under Labor Law §241(6) should not be dismissed as Defendants have failed to submit any evidence in support of their motions.

Plaintiff finally argues that Labor Law §200 and common law negligence cannot be decided as a matter of law as neither Defendant has shown the absence of control over the Plaintiff at the time of the incident.

Sublink responds that its motion is not untimely as it seeks relief "nearly identical" to that sought by RBA, whose motion was timely.

ANALYSIS

Timeliness of Sublink's motion

RBA moved for summary judgment on December 19th, 2007. Thereafter, SUBLINK moved for summary judgment and for dismissal of Plaintiff's complaint after the 60-day period for submitting a summary judgment motion lapsed. SUBLINK's motion does not fall within the exception to the 60 day limit for cross-motions because it is not a cross motion. First, SUBLINK's motion was made by service of a notice of motion, not a notice of cross motion. Second the motion was not made returnable for the same date as RBA's motion and was not served at least three days prior to the date RBA's motion was noticed to be heard, as required by CPLR 2215.SUBLINK did not provide any reason for its failure to serve its motion within 60 days of the filing of the note of issue as required by the Kings County Supreme Court, Uniform Civil Term Rules (Rule 13). See CPLR 3212(a). (See Brill v. City of New York, 2 NY3d 648, 781 NYS2d 261, 814 NE2d 431). "In the absence of such a good cause showing, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment." John P. Krupski & Bros., Inc. v. Town Bd. of Town of Southold, - NYS2d , 2008 WL 4356095 (2nd Dept 2008).

Labor Law §200 and common law negligence

"To establish liability against an owner or general contractor pursuant to Labor Law provision requiring landowners to provide workers with a reasonably safe place to work, it must be established that the owner or general contractor exercised supervision and control over the work performed at the site, or had actual or constructive notice of the allegedly unsafe condition." McKinney's Labor Law 220.

RBA asserts that it neither supervised nor controlled the work being performed there. It asserts it was a "resident engineer" and that its duties were thereby limited to inspection of construction work being performed.

RBA submits a copy of the contract it entered into with The City of New York, which supports its contention that the scope of its work was to perform construction inspection.

Neither Plaintiff nor SUBLINK present any evidence showing that RBA controlled the performance of the work or that it had any knowledge of the activity that led to Plaintiff's injury.

The Second Department held in Aloi v. Structure-Tone, Inc., 2 AD3d 375, 767 NYS2d 832, (2nd Dept 2003) that "Labor Law § 200 and common-law negligence causes of action were properly dismissed because there was no evidence that the defendants supervised or controlled the injured plaintiff's work". They held this despite the fact that the defendant "had general supervisory duties with respect to the construction project", finding "its responsibilities did not rise to the level necessary to impose liability under Labor Law §200". Id., at 376. [*4]

"General supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law § 200. Dos Santos v. STV Engineers, Inc., 8 AD3d 223, 778 NYS2d 48, (2nd Dept 2004). To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. Here, no such supervisory control was delegated to the defendants." Id.

Having a representative on site and having the authority to stop work if found dangerous is not sufficient to hold RBA liable for unsafe working conditions where it did not have authority to control the work and where it was not present. It is not disputed that the Plaintiff and Mr. Schuyler were the only individuals present at the time of the accident.

Even if, as Plaintiff contends, RBA had the authority to stop unsafe work practices, that would not make RBA liable under §200 or for common law negligence for an incident that occurred during operations they were not supervising and of which they had no knowledge.

Plaintiff and SUBLINK fail to raise any issue of fact that would support a finding that RBA is subject to liability under Labor Law §200 or common law negligence.

Labor Law §240(1)

Plaintiff cites Outar v. City of New York, 286 AD2d 671, 730 NYS2d 138(2nd Dept 2001), arguing that a falling object need not be in the process of being hoisted to invoke the protections of §240(1). Although true, it does not negate the requirement that there be a height differential for §240(1) to apply.

In Outar, althoughthe dolly which fell on the plaintiff was not being hoisted, the Second Department made note of the fact that the "height differential was sufficient to implicate the special protections afforded by Labor Law §240(1).

However the Outar Court went on to cite Rodriguez v Tietz Ctr. for Nursing Care (84 NY2d 841), noting that the special protections afforded by Labor Law § 240 (1) were not implicated in that case "since the plaintiff was injured when the beam he and his co-workers were carrying dropped from their hands. The fall of an object carried by hand, unlike the fall of the unsecured dolly here, does not implicate the special protections afforded by Labor Law § 240 (1)". (See also, Carroll v Timko Contr. Corp., 264 AD2d 706 where "[t]he injured plaintiff was not working at an elevated worksite, nor was he struck by an object positioned at a higher level. The mere fact that he was lifting a heavy object did not give rise to liability pursuant to Labor Law § 240 (1)).

The situations in Rodriguez and Carroll are more analogous than Outar to the present case where there is no difference in elevation between Plaintiff and the grate.

At bar, the grate was not elevated nor was there any height differential between the grate and the Plaintiff. It was positioned on the ground at the level he was standing. Accordingly a claim under Labor Law §240 (1) does not lie.

Labor Law § 241(6)

Plaintiff has not demonstrated he has a valid claim under §241(6) because he has not identified specific requirements of the Industrial Code that were violated. [*5]

"To sustain a cause of action against an owner and general contractor under Labor Law § 241(6) for failure to provide adequate safety measures, the plaintiff must allege [that] a concrete specification of the [Industrial] Code has been violated' , as opposed to general safety standards". Boho v. City of New York, 266 AD2d 173, 697 NYS2d 331, (2nd Dept 1999), quoting Rizzuto v. Wenger Contr. Co., 91 NY2d 343, 350, 670 NYS2d 816, 693 NE2d 1068. Marooney v. 125 West 31st Street Associates, LLC, 20 Misc 3d 1129(A), Slip Copy, 2008 WL 3081659 (Table) N.Y.Sup.,2008.

Plaintiff cites four sections of the Industrial Code to support his Labor Law §241(6) claim: § 23-1.5, § 23-1.7, § 23-1.16 and § 23-1.21.

However, the requirements of §23-1.5, (General Responsibility of Employers), and §23-1.7, (Protection from General Hazards), are too general to sustain a Labor Law §241(6) claim.Further Plaintiff fails to adduce any evidence that either §23-1.16, (Safety Belts, Harnesses, Tail Lines and Lifelines), which describes the requirement of and manner of use of attachments to hanging lifelines, or §23-1.21 (Ladders and Ladderways), which sets forth certain specifications for ladders, were violated, or are in any way applicable to the case at bar.

Lastly, that part of RBA's motion which seeks summary judgment on its claim for common law indemnification against SUBLINK is premature because it has not been determined that SUBLINK was negligent. Unlike contractual indemnification, RBA can only seek common law indemnification from SUBLINK if it has been found to be negligent.

WHEREFORE by reason of the foregoing, Defendant RBA's motion for summary judgment is granted to the extent of dismissing Plaintiff's claims based on Labor Law §§240(1) and 241(6), dismissing Plaintiff's claims based on Labor Law §200 and common law negligence as against RBA only, and denied as to RBA's cross-claim for indemnification against SUBLINK, and Defendant SUBLINK's motion for summary judgment which seeks dismissal of Plaintiff's claims against it is granted and that part which seeks summary judgment on and dismissal of the complaint is denied as untimely.

The foregoing constitutes the decision and order of this court.

E N T E R,

_________________________

J. S. C.