Carpenter v Garbade Constr. Corp.

[*1] Carpenter v Garbade Constr. Corp. 2008 NY Slip Op 52504(U) [21 Misc 3d 1145(A)] Decided on November 25, 2008 Supreme Court, Broome County Rumsey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2008
Supreme Court, Broome County

Michael M. Carpenter and Linda Carpenter, Plaintiffs,

against

Garbade Construction Corp., ROBERT W. GARBADE, Individually, and d/b/a Garbade Construction Corp., and JOHN DOE (1-3) (the name of "John Doe" being a fictitious name, the real name of the, Defendants being unknown to Plaintiff, the within Complaint having fictitious name being intended to designate a general contractor or other entity having supervision and/or control over the construction project), Defendants.



2004-1813



ALEXANDER & CATALANO, LLC

By:Peter J. Addonizio, Esq.

Attorneys for Plaintiffs

115 East Jefferson Street, Suite 403

Syracuse, New York 13202

COSTELLO, COONEY & FEARON, PPLC

By:Daniel P. Fletcher, Esq.

Attorneys for Defendants, Garbade Construction Corp.,

Robert W. Garbade, Ind. and d/b/a Garbade Construction Corp.

Salina Place

205 South Salina Street

Syracuse, New York 13202-1327

AINSWORTH, SULLIVAN, TRACY,

KNAUF, WARNER & RUSLANDER, P.C.

By:Elizabeth M. Dumas, Esq.

Attorneys for Defendant Welliver McGuire, Inc.

320 Great Oaks Boulevard

Albany, New York 12203

Phillip R. Rumsey, J.

Plaintiff Michael M. Carpenter (plaintiff) [FN1] commenced this action to recover for injuries he sustained while employed by S & S Environmental (S & S), which had contracted directly with the Chenango Valley Central School District (the school district) to perform asbestos abatement and removal during a school remediation project. Specifically, he was injured when the scaffold on which he was working unexpectedly tipped, causing him to fall approximately 26 feet to the floor.

Defendants Garbade Construction Corp. and Robert W. Garbade, individually and d/b/a Garbade Construction Corp. (collectively herein Garbade) had contracted directly with the school district to act as construction manager for the project. Garbade now moves for summary judgment dismissing all of plaintiff's claims against it. Plaintiff cross-moved for partial summary judgment establishing Garbade's liability for his injuries pursuant to Labor Law §§240(1) and 241(6).

As a preliminary matter, Garbade has alleged sufficient facts to establish that it did not exercise actual supervision and control over the portion of the work that led to Mr. Carpenter's injury, entitling it to summary judgment dismissing the claims asserted against it under Labor Law §200 and common law negligence (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 506 [1993], appeal after remand, 241 AD2d 650 [1997] [summary judgment denied to general contractor who managed construction project based on testimony that it had provided direction to plaintiff's co-workers]).[FN2] Plaintiff has not opposed this branch of Garbade's motion, [*2]which is therefore granted.

A construction manager is generally not responsible under Labor Law §§240(1) and 241(6) for injuries sustained by a person working on a construction site (Walls v Turner Constr. Co., 4 NY3d 861, 863 864 [2005]). However, a construction manager may be vicariously liable for injuries sustained by a workman if, as an agent of the owner, it had the authority to control the activity which led to the injuries under the terms of its contract with the school district (id.; Adair v BBL Constr. Services, LLC, 25 AD3d 971 [2006]; Titus v Kirst Constr., Inc., 43 AD3d 1324 [2007]), even if it did not exercise such authority (Griffin v MWF Dev. Corp., 273 AD2d 907 [2000]). Thus, the extent of Garbade's authority to control S & S's work or its safety programs, and consequently its liability under Labor Law §§240(1) and 241(6) for plaintiff's injuries, must be evaluated first by reference to the applicable contract provisions.

The contract between the school district and Garbade, attached as Exhibit H to the Affidavit of Daniel P. Fletcher, Esq., sworn to March 17, 2008 (the Fletcher Affidavit), sets forth the scope of Garbade's duties in detail. The following provision requires that Garbade establish and administer a safety program for each contractor on the project: The Construction Manager shall review the safety programs developed by each of the Contractors for purposes of coordinating the safety programs with those of the other Contractors. The Construction Manager's responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors, agents or employees of the Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by the Construction Manager. The Construction Manager shall be responsible for establishing and administering the safety programs and such responsibility shall extend to direct control over and charge of the acts or omissions of the contractors, subcontractors, agents or employees of the contractors or subcontractors, or any other persons performing portions of the Work which is within the knowledge of the Construction Manager.

Section 2.3.12 (see also section 2.2.9). Thereafter, section 2.3.15 provides that: With respect to each Contractor's own Work, the Construction Manager shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, since these are solely the Contractor's responsibility under the Contract for Construction.[FN3][*3]

These contradictory provisions render the contract ambiguous on its face. It is not possible to reconcile those terms which, on the one hand, provide that Garbade has no responsibility for, or control over, the acts of the contractors, and their agents, including in their conduct of "safety precautions and programs" (section 2.3.15 and the second sentence of section 2.3.12), with the last sentence of section 2.3.12, which, on the other hand, provides that Garbade's responsibility to establish and administer safety programs extends to "direct control" over the acts of "contractors, subcontractors, agents or employees of the contractors or subcontractors, or any other persons performing portions of the Work which is within the knowledge of the Construction Manager."

That both parties also view the contract as inherently ambiguous is apparent from their arguments to the court; neither has proffered a plausible interpretation of the contract that reconciles the inconsistent terms in a manner which gives meaning to both. Plaintiff notes the contradiction in terms and asks the court to rely solely upon the last sentence of section 2.3.12 to hold that Garbade had the right to control the work of S & S. Garbade likewise emphasizes only those provisions of the contract most supportive of its case and urges the court to, in effect, ignore the last sentence of section 2.3.12 and hold that Garbade had no contractual authority to control the work of S & S in apparent disregard of its own argument that the court must avoid construing the contract in a fashion that would render any provision meaningless (citing RM 14 FK Corp. v Bank One Trust Co., N.A., 37 AD3d 272 [2007]).

Because the contract's ambiguity with respect to Garbade's authority to control the safety programs of the contractors on site, specifically S & S, cannot be resolved as a matter of law, extrinsic evidence is required to determine the parties' intent, and neither party is entitled to summary judgment with respect to Garbade's liability under Labor Law §§240(1) and 241(6) (Policastro v Town of LaGrange, 193 AD2d 950[1993]; Dorel Steel Erection Corp. v Seaboard Surety Co., 291 AD2d 309 [2002]).

Garbade also argues, in the alternative, that even if the ambiguity is avoided through a literal reading of the last sentence of section 2.3.12, without reference to the remaining contract terms, it did not have the responsibility to control S & S's acts, because it lacked sufficient "knowledge" of the work being performed by S & S. Garbade thus argues that it is the construction manager's "knowledge" of the "Work" being performed which imposes the potential duty, rather than its knowledge of "other persons" which may be "performing portions of the Work".

To the extent that Garbade's knowledge of the work is relevant, it is undisputed that Garbade, through its on site representative, Mr. Kane, was aware that S & S was performing asbestos abatement and removal in the school auditorium, in furtherance of the project which Garbade had contracted to manage (Transcript of the Examination Before Trial of Clifford L. Kane [Kane EBT], attached as Exhibit F to the Fletcher Affidavit, at pp. 14, 19, 29 32, and 36). S & S provided daily job reports to Kane (Kane EBT at p. 36) and participated in weekly job [*4]meetings conducted by Kane (Kane EBT at pp. 29 31). Before he could allow other prime contractors to commence work in an area where S & S had performed asbestos abatement and removal, Kane was required to confirm whether S & S had satisfactorily completed its work (Kane EBT at p. 32). Garbade asserts that it did not have access to the sealed auditorium (Kane EBT at p. 21), and therefore, had no "knowledge" of S & S's work; however, Garbade made no showing that it had ever attempted to gain, or had been refused, access. Under such circumstances, whether Garbade possessed "knowledge" of S & S's work, as may have been contemplated by the parties to the contract, is an issue of fact.

Therefore, the parties' motions for summary judgment pursuant to Labor Law §§240(1) and 241(6) must be, and hereby are, denied.

This decision shall constitute the order ofthe court.

Dated: November 25, 2008

Cortland, New York

______________________________________

Hon. Phillip R. Rumsey

Supreme Court Justice

ENTER Footnotes

Footnote 1: His wife, Linda Carpenter, having brought a derivative claim for loss of consortium, is also a named plaintiff.

Footnote 2:Even if Garbade had the authority to control the acts of S & S and its employees, under the terms of its contract with the school district, it is undisputed that Garbade did not exercise any actual control over the asbestos abatement and removal work being performed in the high school auditorium by S & S (see the Affidavit of Daniel P. Fletcher, Esq., sworn to March 17, 2008, at ¶¶ 19 21 and 32 33).

Footnote 3: The contracts at issue in Adair, 25 AD3d at 971, and Titus, 43 AD3d 1324, are substantially similar to the contract at issue here all three utilize AIA Document B801/CMa, 1992 Edition (Owner Construction Manager Agreement) (see Record on Appeal, Volume I, at pp. 802 803, Adair; Record on Appeal, Volume I, at p. 272, Titus). In fact, the first two sentences of sections 2.3.12 and 2.3.15 are identical in all three contracts. Significantly, though, the last sentence of section 2.3.12 in the contract at issue in this case, which causes the ambiguity and which may impose a duty upon Garbade, was not present in the contracts at issue in Adair and Titus.