Barrios v City of New York

[*1] Barrios v City of New York 2008 NY Slip Op 52427(U) [21 Misc 3d 1139(A)] Decided on October 28, 2008 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2008
Supreme Court, Richmond County

Flor Barrios, Plaintiff,

against

City of New York, SKANSKA USA BUILDING, INC. and SPEARIN, PRESTON & BURROWS, INC., Defendants.



Flor Barrios, Plaintiff,

against

New York City Economic Development Corporation, BARNEY SKANSKA, INC., and BARNEY SKANSKA CONSTRUCTION COMPANY, Defendants.



13776/04

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion (No. 454-004) and cross motion (No. 1182-006) for summary judgment by (1) plaintiff and (2) defendants The City of New York (hereinafter "City") and The New York City Economic Development Corporation (hereinafter "EDC") are granted to the extent indicated and are otherwise denied.

To the extent relevant, on May 11, 2004, plaintiff Flor Barrios (hereinafter "plaintiff") "fell from a ladder built into a scaffold" on which she was climbing to begin asbestos removal work in the hall of the St. George Ferry Terminal in Staten Island (Plaintiff's Bill of Particulars). As a result of this incident, plaintiff claims to have sustained various personal injuries including a left ankle injury (id.).

Plaintiff commenced these consolidated actions against the City, the EDC, Skanska USA Building, Inc., Barney Skanska, Inc. and Barney Skanska Construction Company (hereinafter collectively "Skanska") alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6). In Motion No. 454-004, plaintiff moves for partial summary judgment under Labor Law §240(1) contending that (1) the City and EDC are liable as the owners of the subject premises and (2) Skanska is liable as the general contractor/construction manager of the premises [*2]where the subject accident occurred [FN1].

Labor Law §240(1) imposes absolute liability on owners, contractors and their agents whose failure to provide workers with safety devices that properly protect them against elevation-related special hazards such as falling from a height are the proximate cause of an injury (see Striegel v. Hillcrest Hgts Dev Corp, 100 NY2d 974, 977 [2003]). While the statute must be liberally construed to accomplish its intended purpose (see Bonilla v. State of New York, 40 AD3d 673, 674 [2nd Dept 2007]), it is not every fall from, e.g., a ladder, that results in liability under Labor Law §240(1). There must also be evidence that the fall was proximately caused by a violation of the statute (see Kozlowski v. Grammercy House Owners Corp, 46 AD3d 756, 758 [2nd Dept 2007]). Moreover, where a plaintiff's own actions are the sole proximate cause of an accident, there can be no liability (id.).

According to her deposition testimony, plaintiff was employed by non-party Safeway Environmental (Plaintiff's EBT p 16) to perform lead removal work in connection with the renovation of the St. George Ferry Terminal (id. at 17). Her materials, tools and other equipment were provided by her employer (id. at 20-21). On the date of the accident, plaintiff was assigned to perform, inter alia, lead removal in the hallway of said terminal (id. at 24, 26). To accomplish this task, plaintiff was provided with a four-legged scaffold assembled by Safeway's foreman and shop steward that was six feet tall by three feet wide (id. at 23, 29-30). A five rung ladder was located on one side of the subject scaffold (id. at 34). The accident occurred when plaintiff was on the fourth rung and "the scaffold was very loose and moved a lot, and at the moment when it started to have a lot of movement, [she] lost [her] balance and went down to the first rung... [A]t that moment [she] twisted [her] foot" (id. at 34). There were no witnesses to plaintiff's accident (id. at 43). According to plaintiff, the continued movement of the scaffold which caused her to lose her balance was likely due to "too much weight or maybe the condition... of the scaffold [which] was not the best" (id. at 44).

On the basis of this testimony, plaintiff has established her prima facie entitlement to summary judgment on the issue of liability pursuant to Labor Law §240(1) (see Gilhooly v. Dormitory Auth of State of NY, 51 AD3d 719 [2nd Dept 2008]; Ricciardi v. Janowitz Constr Corp, 49 AD3d 624 [2nd Dept 2008]; Argueta v. Ponoma Panorama Estates, Ltd., 39 AD3d 785, 786 [2nd Dept 2007]; Lesisz v. Salvation Army, 40 AD3d 1050, 1051 [2nd Dept 2007]; see also Salon v. Millinery Syndicate, Inc., 47 AD3d 914 [2nd Dept 2008]). Where plaintiff in a Labor Law case has made a prima facie showing of liability on a motion for summary judgment, the burden shifts to defendants "to present evidence sufficient to raise a triable issue of fact as to whether there was no statutory violation and the worker's own conduct was the sole proximate cause" (Moniuszko v. Chatham Green, Inc., 24 AD3d 638 [2nd Dept 2005]). In this case, since the defendants in opposition have failed to raise a triable issue of fact as to either (see Ricciardi v. Janowitz Constr Corp, 49 AD3d at 625; Norwood v. Whiting-Turner Contr Co., 40 AD3d 718 [2nd Dept 2007]; Boe v. Gammarati, Jr., 26 AD3d 351 [2nd Dept 2006]), plaintiff's motion for partial summary judgment is granted.

Turning to the cross motion for summary judgment by the City and EDC, said defendants seek to dismiss (1) plaintiff's common-law negligence and Labor Law §200 causes of action on the ground that they had neither notice of the alleged defect nor supervisory control over the plaintiff's work, and (2) her Labor Law §241(6) cause of action because she failed to plead the violation of any [*3]regulatory predicate (see infra).

The cross motion is decided in accordance with the following:

Labor Law §200 represents a codification of the common-law duty imposed upon owners and general contractors to provide construction site workers with a safe place to work (see Kajo v. E.W. Howell Co., Inc., 52 AD3d 659, 661 [2nd Dept 2008]; Markey v. C.F.M.M. Owners Corp.,51 AD3d 734, 736 [2nd Dept 2008]; Smith v. 499 Fashion Tower, LLC., 38 AD3d 523 [2nd Dept 2007]). Liability under Labor Law §200 may be based either upon the manner in which the work is performed or actual or constructive notice of a dangerous condition inherent in the premises (see Markey v. C.F.M.M. Owners Corp.,51 AD3d at 736). Where the injury allegedly arises from the means and methods of the work performed, an implicit precondition to this liability is that the party to be charged have the authority to control the activity bringing about the injury (see Kajo v. E.W. Howell Co., 52 AD3d at 661). Thus, where the alleged defect or dangerous condition arises solely from the contractor's methods, and the owner exercises no supervisory control over that operation, no liability can attach to the owner either under common-law or under Labor Law §200 (see Giambalvo v. Chemical Bank, 260 AD2d 432, 433 [2nd Dept 1999]).

Here, according to the deposition testimony of Tarek Hatab, a consultant employed by EDC, the EDC had entered into a contract with nonparty Transcontinental, who subcontracted the hazardous material abatement work for the rehabilitation project at the St. George Ferry terminal (hereinafter "St. George project") to plaintiff's employer, Safeway Environmental (hereinafter "Safeway") (Hatab EBT p 23). At that time, there was already in existence another contract between the EDC and co-defendant Skanska pursuant to which Skanska was designated the construction manager for the St. George project (id. at 13-16). In the course of the performance thereof, Skanska hired various subcontractors "that did controlled inspections [and] provided some staff support", including nonparty GRB, which was hired to "provide asbestos [and] hazardous material oversight and safety engineering" (id. at 41-42). Mr. Hatab further testified that Skanska not only supervised the work at the St. George project site, but also provided tools, materials and equipment for certain of the subcontractors (id. at 41-45).

Sam Alacha, one of the project managers for Skanska, confirmed that his employer was the construction manager for the St. George project [FN2] (Alacha EBT p 8), and that its duties included coordinating the work between the subcontractors; ensuring the quality of the work performed; and enforcing safety rules and regulations at the construction site (id. at 16-19). To this end, Skanska not only employed several safety officers, but hired nonparty GRB to monitor hazardous material safety at the job site (id. at 21). Alacha further testified that the duties of Skanska's safety officers were to "walk the site, make sure everybody is wearing their protective equipment, [and that] everybody is working in a safe manner" (id. at 23).

Asbestos and lead abatement was required throughout the project, and among the companies hired to perform such work was plaintiff's employer, Safeway (id. at 27). According to the witness, Skanska's project managers were divided among the various subcontractors in such a way that one or more of them would have come into contact with Transcontinental and Safeway at the job site (id. at 30). Whenever work was taking place, either a project manager or some other Skanska representative was supposed to be present (id. at 32). While each of the prime contractors working on the project was hired by the City or EDC, GRB was hired by Skanska to monitor, e.g., asbestos removal (id. at 31-32). Alacha also testified that Skanska's supervisory employees were required [*4]to complete daily reports (id. at 34, 58) indicating "the date, the weather, the contractors working that day, how many men they had [at the site] and what they... did" (id. at 38). In this regard, a copy of the daily report prepared by a Skanska superintendent for the date of plaintiff's accident was submitted to the Court (Skanska's Exhibit "D", City/EDC's Exhibit "E"). To the extent relevant, said report indicated that on the day in question GRB "[m]onitored Safeway's lead abatement throughout site" (id.).

Also submitted to the Court was a copy of the contract between the EDC and Skanska, which outlines the responsibilities of the construction manager [FN3] with regard to the St. George project as follows (Skanska's Exhibit "D", City/EDC's Exhibit "E"): "The primary responsibility of the Construction Manager's field inspector ("the Inspector") is to be thoroughly familiar with pertinent plans and specifications and to verify that the work is in compliance with the Contract Documents. Inspectors shall perform or arrange for the performance of inspections and tests required by approved inspection and test plans. Inspectors shall cooperate with inspection personnel from City, State and Federal Agencies. Statutory requirements cannot be waived (i.e., laws governing use of labor). If the Inspector notices an obvious unsafe act, the problems shall be discussed with the Resident Engineer and infractions shall be reported to the Corporation. The Inspector shall work under the technical direction of the Resident Engineer" (id. at A-26)."The Construction Manager shall maintain daily job diaries recording in detail work accomplished, number of workers and type and quality of equipment of site, material deliverables, and other items relevant to the particular construction contract" (id. at A-35)."The Construction Manager shall develop and maintain a Quality Assurance/Quality Control Program ("QCP") for the construction work that shall provide cost-effective quality control consistent with the complexity, criticality and safety aspects of the item being provided or the task being performed. To the extent feasible, such QCP shall aim to prevent conditions adverse to quality, assure prompt detection and analysis of actual and potential deficiencies contributing to marginal quality, and provide for timely and effective corrective action" (id. at A-35)."a. The Construction Manager shall review each Contractor's safety program for compliance with the requirements of The Occupational Safety and Health Act ("OSHA") and amendments thereto, and other local, State and Federal ordinances, rules, regulations, statutes or laws which may be applicable.b.The Construction Manager shall routinely advise the Corporation of all safety matters, as well as furnish copies of safety-related correspondence" (id. at A-37).

On the foregoing evidence, both the City and EDC have established their prima facie entitlement to summary judgment dismissing both the common-law negligence and Labor Law §200 causes of action asserted against them by demonstrating that they had neither actual nor constructive [*5]notice of the allegedly defective scaffold which caused plaintiff's accident, and that they lacked the authority to control or supervise plaintiff's work (see Walker v. EklecCo, 304 AD2d 752 [2nd Dept 2003]). In opposition, plaintiff has failed to raise a triable issue of fact. Accordingly, this branch of the cross-moving defendants' motion for summary judgment is granted (see Haider v. Davis, 35 AD3d 363, 364 [2nd Dept 2006]).

Unlike §200, Labor Law §241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers even in the absence of control or supervision (see Walker v. EklecCo, 304 AD2d at 752). However, in order to state a cause of action under Labor Law §241(6), a plaintiff must set forth the relevant safety provisions of the State Industrial Code which were allegedly violated, and demonstrate that his or her injuries were proximately caused thereby (see Rivera v. Santos, 35 AD3d 700, 702 [2nd Dept 2006]).

In the case at hand, the complaint alleges that defendants violated "Section 23 of the New York State Industrial Codes Rules and Regulations" (Plaintiff's Exhibit "A" para 36), but fails to designate any specific provision of the Code that was purportedly violated. The same is true of plaintiff's bill of particulars (Plaintiff's Exhibit "D"). In light of this failure, the moving defendants have established their prima facie entitlement to summary judgment dismissing plaintiff's Labor Law §241(6) cause of action against them (see Rivera v. Santos, 35 AD3d at 702; Brunette v. Time Warner Entertainment Co. L.P., 32 AD3d 1170, 1171 [4th Dept 2006]; Joachimsen v. Perini Corp., 253 AD2d 737 [2nd Dept 1998]). In opposition, plaintiff has again failed to allege the violation of any specific provision of the Industrial Code. Accordingly, this branch of defendants' cross motion is granted, as well.

Finally, the City and EDC have cross-moved for summary judgment against Skanska for contractual and common-law indemnification. In this regard, the EDC-Skanska contract contains the following provision (Skanska's Exhibit "D", City/EDC's Exhibit "E", §9.02, p 28):

Notwithstanding anything to the contrary contained herein, the Consultant shall be solely responsible for all injuries to persons, including death, or damage to property sustained during its operations and work under this Contract, resulting from any act, omission, negligence, fault or default of the Consultant or its employees, agents, servants, independent contractors or subcontractors retained by the Consultant pursuant to this Contract. The Consultant agrees to defend, indemnify and hold the Corporation and the City and each of their officials, officers, agents and employees harmless from any and all claims, judgments and liabilities, including, but not limited to, claims, judgments and liabilities for injuries to persons (including death) and damage to property, on account of any act, omission, negligence, fault or default of the Consultant, its agents, employees, servants, independent contractors and subcontractors and from any claims against, or liability incurred by, the Corporation or the City or their agents, officers, officials or employees by reason of claims of the Consultant's employees, agents, servants, independent contractors and subcontractors for any matter whatsoever in connection with services performed under this Contract, including, but not limited to, claims for compensation, injury or death. The Consultant agrees to reimburse the Corporation and the City for reasonable attorneys' fees and expenses incurred in connection with the above. The Consultant shall be solely responsible for the safety and protection of all its employees and shall assume liability for injuries, including death, that may occur to said employees due to the negligence, [*6]fault or default of the Consultant.[FN4]

While owners and general contractors are absolutely liable for the violation of Labor Law §240(1) at their worksites, these defendants can nevertheless recover in indemnity from those found to be actually responsible for an accident, whether at common-law or pursuant to contract (see Lazzaro v. MJM Indus, 288 AD2d 440 [2nd Dept 2001]). Here, the cross movants have met their initial burden of demonstrating their entitlement to contractual indemnification by introducing the relevant provisions of the agreement between Skanska and the EDC, which include an express indemnification clause running in favor of both municipal defendants (see Naranjo v. Star Corrugated Box Co., 11 AD3d 436, 437-438 [2nd Dept 2004]). Accordingly, the burden has shifted to Skanska to come forward with sufficient evidence, in admissible form, to raise a triable question of fact as to whether the contractual indemnification provision has been "triggered"or is capable of enforcement (id. at 438). In its attempt to carry this burden, Skanska relies upon General Obligations Law §5-322.1 to invalidate the contractual indemnification provision.

As applicable, General Obligations Law §5-322.1 prohibits the enforcement of an indemnification provision by a party which was itself negligent, or which had the authority to supervise, direct, or control the work that brought about the injury (see Damiani v. Federated Dept Stores, Inc., 23 AD3d 329, 331 [2nd Dept 2005]; Naranjo v. Star Corrugated Box Co., 11 AD3d at 438 ). Although an indemnification agreement that purports to insulate a party for its own negligence is void under General Obligations Law §5-322.1, it may be enforced to the extent that the party to be indemnified is found to be free of any negligence, e.g., a party whose liability is imputed or vicarious only (see Lesisz v. Salvation Army, 40 AD3d at 1051; Cabrera v. Board of Educ of City of NY, 33 AD3d 641, 643 [2nd Dept 2006]). Also, it has been held in this context that an owner's general duty to supervise the work and ensure compliance with safety regulations is insufficient to preclude indemnification for the negligence of the contractor who supervises the day-to-day operations (see Warnitz v. Liro Group, Ltd., 254 AD2d 411 [2nd Dept 1998]). Similarly, the fact that an owner may have dispatched persons to observe the progress or method of the work is alone insufficient to alter the vicarious nature of its liability (id. at 412).

Here, although the City and EDC have established prima facie that their liability to plaintiff under Labor Law §240(1) is based solely upon their status as the owners of the subject worksite, it is undisputed that Safeway was not hired by Skanska. Therefore, a question of fact exists as to whether the indemnification clause in Skanska's EDC contract is applicable herein. Particularly pertinent to this aspect of the case is the contract language which provides for the indemnification of the municipal defendants for damages caused by the acts of the "employees, agents, servants, independent contractors or subcontractors retained by the Consultant", i.e., Skanska.

Somewhat similarly, since Skanska has yet to be found actively negligent, summary judgment on the issue of the cross-movants' claim for common-law indemnification would be premature at this juncture (see Tworek v. Mutual Hous Assn of NY, Inc., 279 AD2d 469 [2nd Dept 2001]).

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment on the issue of liability under §240(1) of the Labor Law is granted; and it is further [*7]

ORDERED that the cross motion for summary judgment by defendants the City of New York and The New York City Economic Development Corporation is granted to the extent of severing and dismissing so much of the complaint as against them as alleges violations of Labor Law §§241(6) and 200, and under common-law negligence; and it is further

ORDERED that the balance of the cross motion is denied; and it is further

ORDERED that the matter be set down for a trial on the issue of damages upon the filing of any necessary papers and the payment of any required fees; and its is further

ORDERED that the action shall continue as to each of the remaining causes of action and cross claims; it is further

ORDERED that the Clerk enter judgment in accordance herewith.

ENTER,

__/s/______________________

Hon. Thomas P. Aliotta

J.S.C.

DATED:OCTOBER 28, 2008 Footnotes

Footnote 1:On or about March 21, 2007, an order was entered consolidating Action No. 2 into Action No. 1. Pursuant to the Order of this Court dated August 13, 2008, the complaint as against Defendant Spearin, Preston & Burrows, Inc. was dismissed.

Footnote 2:According to Mr. Alacha, the separately named Barney Skanska Construction Company is the same entity named as Skanska USA Building, Inc. (Alacha EBT p 10).

Footnote 3:In Appendix A of the EDC-Skanska contract, entitled "Scope of Services", the term "Construction Manager" is defined as Skanska; the term "Corporation"refers to the EDC.

Footnote 4:As defined in the contract, the term "Consultant" refers to Skanska and the term "Corporation" refers to the EDC.