Jawara v BHA, Inc.

[*1] Jawara v BHA, Inc. 2009 NY Slip Op 51217(U) [24 Misc 3d 1201(A)] Decided on June 15, 2009 Supreme Court, Bronx County Victor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2009
Supreme Court, Bronx County

Mahamadou Jawara, Plaintiff(s),

against

BHA, Inc., MACOMBS ROAD ASSOCIATES, INC., MACOMBS ROAD ASSOCIATES, L.P., and JOY CONSTRUCTION CORPORATION, Defendant(s).



17559/2006



Plaintiff: Schwartz Goldstone & Campisi

90 Broad Street

New York, NY 10004

Defendants:Brown Gavalas & Fromm

355 Lexington Avenue

New York, NY 10017

Defenndant: Rubin, Fiorella and Friedman

292 Madison Avenue

New York, NY 100178

Paul A. Victor, J.

Plaintiff Mahamadou Jawara moves for summary judgment pursuant to CPLR 3212 on his claim under Labor Law §240(1). Defendants Macombs Road Associates, Inc./Macombs Road Associates L.P.[hereinafter Macombs] and defendant BHA, Inc. [hereinafter BHA] cross-move to dismiss all claims brought against them under Labor Law Sections 200, 240(1), [*2]and 241(6).

Defendant Joy Construction Company [hereinafter Joy] cross-moves to dismiss the plaintiff's claims against it based upon the prohibition of such claims by an employee under the Worker's Compensation Law.

Macombs and Joy also each move for summary judgment on their contractual indemnification claims against defendant BHA.

ISSUES PRESENTED

The motions present the usual panoply of interesting Labor Law tort and indemnification issues, including one under Labor Law Section 241(6) which appears to be somewhat novel:

Does every "overhead hazard"at a construction site automatically trigger

the protections provided by Industrial Code Section 12 NYCRR 23-1.7 (a)(1) which requires protection from overhead hazards?

This court, under the circumstances here presented, holds that this claim should be dismissed. However, since this overhead hazard presented a foreseeable risk which this court determines to be within the purview of "a hazard contemplated by Section 240(1) of the Labor Law", the plaintiff's motion for summary judgment thereunder should be granted.

FACTUAL BACKGROUND

The Parties To The Action

Plaintiff, Mahamadou Jawara— laborer employed by defendant Joy ; Defendant, Joy general contractor and plaintiff's employer; Defendant, BHA the masonry subcontractor; and Defendant, Macombs— the property owner.

The Accident

The plaintiff, a construction worker, who was employed by the general contractor Joy, was injured on September 28, 2003 when he was struck in the head by a cement block which fell from a stack of cement blocks piled on a sidewalk adjacent to a construction site. It is unclear from the evidence submitted as to the precise circumstances under which cement blocks were previously delivered on pallets to the job site, piled on the sidewalk from 8 to 14 feet in height, and then covered with a tarp. All of these responsibilities, however, are within the context of the obligations delegated to the masonry subcontractor BHA by Joy, pursuant to a written agreement.

The tarp had apparently been placed on the cement blocks because one Michael Tucker, an employee of Joy had complained to BHA, that the cement blocks had been left exposed to the elements. Previous to the accident the police had complained to one Smith, an employee of the general contractor (Joy) that the cement blocks were blocking the sidewalk. Thus, on September 24, 2003 the plaintiff (an employee of Joy, the general contractor) was told by his supervisor, who he only knew as "Smith", to remove the plastic tarp covering the pile of pallets of cement blocks. The tarp was held in place by several of the blocks which were placed on top of the tarp. There is no indication in the record as to the specific instructions given to the plaintiff as to how he was to accomplish this task; likewise, there is no indication in the record as [*3]to what, if any, equipment and safety devices existed at the job site to provide proper protection to plaintiff while he was in the process of removing the tarp. In any event, the plaintiff, standing on the ground, used a shovel to attempt to remove the blocks which were holding the tarp in place. When he did so, some of the blocks fell off and one of them struck him in the head. Vidatu Budha, who worked for BHA, witnessed the plaintiff attempting to pull the tarp off with his hands, but then turned away until he heard a sound, and then saw the plaintiff holding his head.

The plaintiff claims, among other things, that he was injured because the defendants violated Labor Law Sections 240(1) and 241(6) and the following specific Industrial Code Sections:12 NYCRR 23-1.8(c)(1) [which requires protective apparel/"head protection"]; and 12 NYCRR 23-1.7(a)(1) [ which deals with protection from "overhead hazards"]; and 12 NYCRR 23-2.1(a)(1) [ which prohibits storage of building materials on a walkway and requires that same be stored in a safe and orderly manner]; and plaintiff claims that each violation was a proximate cause of his injuries.

The Contracts

1. The Owner's Agreement with the General Contractor

On October 15, 2002, Macombs as owner entered into a contract with Joy for Joy to act as the general contractor for the construction of a 90 unit apartment building. The contract included all labor, materials and equipment (section 1.1.3); and it stated that Joy would be responsible to Macombs for the acts and omissions of its own employees, subcontractors and their agents (section 3.3.2); that Joy would provide and pay for all labor, materials and equipment necessary and for the proper execution and completion of the work (section 3.3 .4); and that Joy would provide to Macombs and other contractors a reasonable opportunity for the introduction and storage of their materials and equipment (section 6.2 .1).

Section 3.13.1 entitled "Use of Site" states: "The Contractor (Joy) shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract documents and shall not unreasonably encumber the site with materials and equipment"

It is noted that pursuant to section 2.4 entitled "Owner's Right to Carry out the Work", the owner Macombs retained some control over the work in that it gave the owner the right , after appropriate notice, to correct any deficiencies in Joy's work.

2. The General Contractor's Agreement with the Subcontractor

On January 9, 2003, Joy and BHA entered into a subcontract whereby BHA would perform the masonry work at the job site located at 1491 Macombs Rd in the Bronx.

Section 2.1 of this subcontract entitled "Mutual Rights and Responsibilities"states as follows: "The contractor and subcontractor shall be mutually bound by this agreement and, to the extent that the provisions of the Prime Contract shall apply to the work of the subcontractor, the contractor shall assume toward the subcontractor all obligations and responsibilities that the owner, under the Prime Contract, assumes toward the contractor, and the subcontractor shall assume toward the contractor all obligations and responsibilities which the contractor, under the prime contract, assumes toward the owner and the architect. The Contractor shall have the benefit of all rights, remedies, and redress against the subcontractor which the owner under the prime contract has against the [*4]contractor, which the contractor, under the prime contract has against the owner insofar as applicable to this subcontract. Where a provision of the prime contract is inconsistent with a provision of this agreement, this agreement shall govern."[emphasis added]

The Indemnification Provision

Additionally, Paragraph 4.6.1 of the sub-contract entitled "Indemnification" provided as follows: To the fullest extent permitted by law, the subcontractor shall indemnify and hold harmless the owner, contractor, architect, architects consultants, and agents and employees of any of them from and against any expenses including but not limited to attorneys fees, arising out of or resulting from performance of the subcontractors work under this subcontract, provided that such claim, damage, loss or accident is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work itself) including the loss of use resulting therefrom arising out of the work by the subcontractor, the subcontractor's subcontractors, and anyone directly or indirectly employed by them or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or an expense is caused in part by a party indemnified hereunder, such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or persons described in this paragraph 4 .6.[emphasis supplied]

The phrase italicized above, "arising out of the work", was not part of the pre-printed form contract, but rather was handwritten into the contract and initialed by the parties.

In their answer to the complaint, Macombs and Joy asserted cross claims against BHA for contractual indemnification arising out of this incident. In September of 2006, Mutual Marine, the insurance carrier for Joy , tendered its defense to UTC, the carrier for BHA.

CONTENTIONS OF THE PARTIES

Plaintiff's Motion

Plaintiff argues that he is entitled to summary judgment on the claim he has brought pursuant to Labor Law §240(1) because the cement block which injured him fell from a height estimated at 8 to 14 feet; and that liability under that section does not require that the item be hoisted or secured at the time that it fell. In support of this claim, he supplies an affidavit from a mechanical engineer, Jerome Levine, who states that the pile of blocks should have been properly secured by the use of ropes or slings, and that such safety devices are specifically referred to in Labor Law S. 240(1).

BHA's Motions

BHA argues that there is no evidence that it had any role in the placing of the tarp on top of the pile of cement blocks; that, as a subcontractor, it had no statutory duty under §240(1); and that it is not liable under §200, §240(1) or §241(6) because it did not exercise control over the injury-producing event (the removal of the tarp) and because there is no proof that any Industrial Code Regulations were violated; and finally, that no liability under §240(1) can be established [*5]since the cement block which fell was not in the process of being hoisted or secured.

BHA also argues that the motion by Macombs for contractual indemnity should be denied because no conduct on the part of BHA contributed to the accident, and that therefore the incident did not "arise out of the work" merely because the materials involved would have eventually been used by BHA.

Macombs/Joy Motions

Macombs argues that it is entitled to contractual indemnity from BHA because the language ( "arising out of the work") which was added to the contract by the parties requires that BHA indemnify regardless of whether any action by BHA contributed to the accident ; in any event, that because the accident "arose out of the storage and use of BHA's materials", the accident, in fact, "arose out of" BHA's work. Alternatively, Macombs argues that even if it was partially at fault, its liability is vicarious and not statutory; that late notice (one of the reasons given by BHA's carrier for disclaiming coverage), is not a valid defense to a contractual indemnity claim; and, finally, that even if it is found that Macombs was actively negligent, the contract provides that it must still be indemnified by BHA "to the fullest extent permitted by law", i.e., a partial indemnification in accordance with an apportionment of fault as determined by a trier of the facts.

Joy's Motion

Joy argues that, as the employer which provided Worker's Compensation coverage to the plaintiff, the claims against it should be dismissed pursuant to the Worker's Compensation Law.

APPLICABLE LAW

Labor Law Section 200

Labor Law § 200 is a codification of the common law duty of an owner or employer to provide employees with a safe place to work (see, Jock v. Fien, 80 NY2d 965, 590 NYS2d 878, 605 NE2d 365 [1992].) Liability under Labor Law § 200 cannot be imposed unless plaintiff establishes that the owner or general contractor supervised or controlled the work, performed or had actual or constructive notice of the unsafe condition which precipitated plaintiff's injury (see, Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 609 NYS2d 168, 631 NE2d 110; Murray v. South End Improvement Corp., 263 AD2d 577, 578, 693 NYS2d 264 [3d Dept. 1999]; Butigian v. Port Authority of New York and New Jersey, 266 AD2d 133, 699 NYS2d 41 [1st Dept. 1999] [no evidence that owner or tenant exercised supervisory control over plaintiff's work].)

The Appellate Division, First Department, recently emphasized the requirement of direct control for a finding of liability under section 200 as follows: "Where a claim under Labor Law § 200 is based upon alleged defects or dangers arisingfrom a subcontractor's methods or materials, liability cannot be imposed on an owner or [*6]general contractor unless it is shown that it exercised some supervisory control over the work. [citation omitted] It is well settled that an implicit precondition to th[e] duty [to maintain a safe construction site] is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition' [citation omitted]. General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed [citation omitted]". (emphasis added; Hughes v. Tishman Construction Corp., 40 AD3d 305, 836 NYS2d 86 [1st Dept. 2007]).

Labor Law § 240(1)

A violation of Labor Law §240(1) by an owner, contractor, or their agent is conclusive evidence of negligence and usually results in a summary judgment or a directed verdict for an injured construction worker. This Labor Law provision was enacted in an attempt to minimize, if not eradicate, a construction worker's exposure to elevation related accidents and injuries. As repeatedly stated by the New York Court of Appeals, Section 240 "is to be construed as liberally as may be for the accomplishment of the purposes for which it was thus framed". ( Sanatass v. Consolidated Investing Co.,10 NY3d 333[2008].) Section 240 states:

"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".[emphasis added]

The core objective of this section of the Labor Law is proper protection for construction workers. Therefore, a non-delegable duty is imposed upon all responsible entities ( owners, contractors and their agents) to protect construction workers, not just with scaffolds, but with such "other devices ... as to give proper protection to [such workers] ." ( Bland v. Manocherian, 66 NY2d 452 [1985]; Blake v. Neighborhood Housing Services, 1 NY3d 280 [2003]; Torres v. Monroe College, 12 AD3d 261 [1st Dept. 2004]). When a construction worker is not provided with proper protection and is injured as a result of one of the hazards, which Section 240 was enacted to eradicate, the general common law defenses are not available, and absolute liability is imposed on all responsible entities. Zimmer v. Chemung County Performing Arts Ctr., 65 NY2d 513 [1985][ "For breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it"]).

It was in Zimmer that it was stated that "a violation of such a statute is conclusive evidence of negligence and conclusive evidence calls for a directed verdict". However, it has been made abundantly clear that "section 240 does not give absolution to the plaintiff when his injury has been caused, exclusively by his intentional acts" (Emphasis supplied.) Tate v [*7]Clancy-Cullen Storage Co. Inc., 171 AD2d 292, 296, 575 NYS2d 832 [1st Dept. 1991].) This kind of improper intentional conduct committed by a construction worker has evolved into the legal axiom that liability will not be imposed upon owners and contractors when the worker's conduct is the sole proximate cause of the occurrence. (Weininger v Hagedorn & Co., 91 NY2d 958, 672NYS2d 840 [1998], reargument denied, 92 NY2d 875, 677 NYS2d 777 [1998].)

Sole Proximate Cause

As often stated by the Court of Appeals "[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1)". The Court of Appeals has consistently stated that strict or absolute liability is "necessarily contingent on a violation of section 240(1)", and that "an accident alone does not establish a Labor Law § 240 (1) violation or causation". Blake v. Neighborhood Houses, 1NY3d 280 [2003]; Narducci v. Manhasset Bay Assoc., 96 NY2d 259 [2001].

The essence of a violation of Section 240(1) is a failure to provide "proper protection". In Blake, the jury, in answer to specific questions set forth in verdict sheet, expressly found that the plaintiff had been provided with proper protection, and that plaintiff's conduct was the sole proximate cause of the accident. These factual findings were affirmed by the Appellate Division; and, upon appeal to the New York Court of Appeals, the Court stated and explained that " extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed". Blake, 1 NY3d 280, at 290.For added emphasis, the

Court of Appeals "cautioned that an owner [FN1] is not an insurer after having furnished a safe workplace and that an accident, in and of itself, does not establish a statutory violation".( Sanatass, 10 NY3d 333 at 339; Blake, 1 NY3d 280 at 289).

For a full discussion of this Court's view of the import of the Blake decision, and the applicability of the "sole proximate cause" defense, see Robinson v. City Of New York, 4 Misc 3d 542, 779 NYS2d 757; affirmed ; 22 AD2d 293 [1st Dept. 2005] McMahon v. 42nd St. Development Project, Inc., 188 Misc 2d 25, 726 NYS2d 203, [1/9/05].

Since Blake, the sole proximate cause issue (especially as it relates to the use of ladders) has been addressed by the Court of Appeals on several other occasions. See, e.g., Montgomery v. Federal Express Corp., 4 NY3d 805 [2003] and Miro v. Plaza Construction, 9 NY3d 948 [2007].

In Montgomery, supra ., the plaintiff worker (who did not have a ladder in his immediate vicinity) chose to stand on a bucket, from which he later jumped , and was injured. The Court of [*8]Appeals indicated that the sole proximate cause defense was applicable and plaintiff's action should be dismissed since a safety device ( a ladder) was readily available to him somewhere else on the job site. Specifically, the court stated:

We agree with the Appellate Division that, since ladders were readily available,plaintiff's "normal and logical response" should have been to go get one. Plaintiff'schoice to use a bucket to get up, and then to jump down, was the sole cause ofhis injury, and he is therefore not entitled to recover under Labor Law§ 240 (1) (4 NY3d 805 at 806 )

In Miro, supra , the plaintiff not only opted to use an unsafe ladder ( i.e. one which was covered with fireproofing material) he also admitted that he could have, but did not, request a different ladder. The First Department reversed a grant of summary judgment to the plaintiff, and granted summary judgment to the defendant, stating "that where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability". The Court of Appeals, however, modified the decision to the extent of denying summary judgment to the defendant, and in a two-sentence decision stated :

"Assuming that the ladder was unsafe, it is not clear from the record howeasily a replacement ladder could have been procured" [ Miro, 9 NY3d 948]

See also, Robinson v. East Med Ctr, 6 NY3d 550 [2006] [plaintiff's section 240 cause of action dismissed because he used, and fell from, an inadequate (short) ladder although other adequate (taller) ladders where readily available on the job site]

Following the above Court of Appeals cases, the Appellate Division, First Department, also addressed the question of the "availability" and "adequacy" of ladders as it relates to the sole proximate cause issue. See, for example: Egan .v Monadnock Constr. Co. , 43 AD3d 692 [1st. Dept. 2007][ plaintiff's 240(1) cause of action dismissed because he chose to use an inadequate A frame ladder when other adequate straight ladders were available on the job site, despite the fact that the plaintiff did not know that other adequate ladders were available ]; Rukaj v. Eastview Holdings, LLC, 36 AD3d 519, [1st Dept. 2007] ["plaintiff's conduct in climbing a ladder while guiding a pump with one hand and using the other to hold onto the ladder steps was the sole proximate cause of his fall off the ladder"]; Vega v.Rotner Management Corp., 40 AD3d 473 [1st Dept. 2007][ summary judgment granted to plaintiff where, when no other safety devices were provided, plaintiff stood on an unsecured ladder which ultimately shifted] ; Carino v. Webster Place Associates, 45 AD3d 351 [1st Dept. 2007][ summary judgment granted to the plaintiff when he fell from a ladder which was found to be inadequate to his task of removing an 8 foot fence, "regardless of the method used by plaintiff to remove the fence" ];Hart v. Turner Construction Company, 30 AD3d 213 [1st Dept. 2006][ summary judgment granted to the plaintiff who fell from eight foot high unsecured ladder which shifted while he worked, since no other safety devices were available];Velasco v. The Green-Wood Cemetary, 8 AD3d 88 [1st Dept. 2004][ summary judgment granted to plaintiff when he fell from an unsecured ladder which he set up on soft soil since " no other safety devices were provided to protect him in the event the ladder slipped" ]; Torres v. Monroe College, 12 AD3d 261 [1st. Dept. 2004][summary judgment [*9]granted to plaintiff when he fell from an unsecured ladder which he voluntarily placed on top of scaffold which was of insufficient height to perform assigned task]; Samuel v. Simone Dev. Corp., 13 AD3d 112 [1st Dept. 2004][ "In light of the undisputed fact that plaintiff was given an unsecured, wobbly ladder and furnished with no other safety devices, plaintiff's alleged drug use could not be the sole proximate cause of his injuries"].)

As is obvious from the above cases, the most difficult "sole proximate cause" cases are those dealing with the adequacy, availability and use of ladders. In any event, it is clear to this court, that when the circumstances demonstrate that a statutory violation of Section 240 (1) was a ( not necessarily the only) contributing factor to a worker's injury at a construction site, strict liability is imposed and the worker's comparative negligence, however egregious, is factually and legally irrelevant. In other words, where sufficient proof has been presented that the plaintiff may not have been provided with, or given a reasonable opportunity to use an adequate safety device (such as those described in Sec. 240) the "sole proximate cause" defense should not be used to defeat summary judgment.

Falling Objects

"Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein..." Narducci at 267.

Thus, it has been held that, §240 covers other "specific gravity- related accidents" such as "being struck by a falling object". (emphasis added; Ross v. Curtis-Palmer Hydro-Elec. Co., supra , at 501, see, Melo v. Consolidated Edison Co., 92 NY2d 909, 911, 912, 680 NYS2d 47; Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 491, 634 NYS2d 35; Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514, 577 NYS2d 219). However, just as not every fall from a ladder or scaffold presents a §240 claim, not every object which falls and injures a worker gives rise to such a claim. As explained in Narducci v. Manhasset Bay Associates, 96 NY2d 259 [2001]: "With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to "a significant risk inherent in ... the relative elevation ... at which materials or loads must be positioned or secured" (Rocovich v Consolidated Edison Co., supra , 78 NY2d, at 514). Thus, for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. 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". (citations omitted)(emphasis added Narducci at 268)

While the Court of Appeals decision in Narducci appeared to limit a plaintiff's ability to bring a Section 240 "falling object" claim solely to situations where the object was in the process of being hoisted or secured, that court later explained that falling objects not in the process of [*10]being hoisted or secured may also trigger §240 protections. The protections of §240 also extend to falling objects which should have been secured, or were improperly secured. ( Outar v. City of New York, 5 NY3d 731 [2005]; Quattrocchi v. F.J. Sciame Constr. Co., Inc, 11 NY3d 757 [2008].)

In Outar, a Transit Authority worker was injured when a previously stored, but unsecured, dolly fell off a bench wall that was approximately 5 ½ feet high. The defense had argued that, since the dolly was not in the process of being hoisted or secured, section 240(1) was not applicable. In unanimously affirming the judgment in the plaintiff's favor, the Court held: "The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240 (1)'s protection, and the dolly was an object that required securing for the purposes of the undertaking" (emphasis added; Outar at 732.)

In Quattrocchi the plaintiff alleged that he was struck by falling planks that had been placed over open doors as a makeshift shelf to facilitate the installation of an air conditioner above a doorway. Upon plaintiffs appeal from a denial of summary judgment, the Court of Appeals affirmed the order and explained as follows: As our holding in Outar v City of New York indicates, "falling object" liability under Labor Law §§ 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured ...[citation omitted]*** We agree with the Appellate Division majority that triable questions of fact preclude summary judgment on plaintiff's Labor Law §§ 240(1) claim, including whether the planks were adequately secured in light of the purposes of the plank assembly and whether plaintiff caused the accident by jostling the doors after disregarding a warning not to enter the doorway area. Accordingly, the Appellate Division properly modified Supreme Court's order to the extent of denying partial summary judgment on plaintiff's Labor Law §§ 240(1) claim.[emphasis added].

In other words, for a "falling object" (which is not being hoisted or secured) to come within the protections afforded by §240, the work place circumstances must demonstrate that the object, if not secured, would present a foreseeable elevation related risk to the worker, or as stated in Ross, supra ., "a hazard contemplated by the statute". For example, in Boyle v. 42nd St Development Project, Inc. 38 AD3d 404 [1st Dept. 2007], where the plaintiff was injured when a structural steel rod fell down an elevator shaft, the majority held (following Outar) that, since the risk was foreseeable, the plaintiff did not have to prove that the object fell while it was being secured or hoisted. (Compare, Buckley v. Columbia Grammar and Preparatory, 44 AD3d 263 [1st Dept./2007][ hazard was not foreseeable].)

In Buckley, the plaintiff was injured when riding in an elevator which was struck by five counterweights which fell after striking a rail-like spike. The court rejected the plaintiff's contention that § 240 (1) applied, and explained that "what is essential to a conclusion that an [*11]object required securing is that it presents a foreseeable elevation risk in light of the work being undertaken". The Court concluded that since the fall of the counterweights was not foreseeable, and did not pose an elevation related hazard inherent in testing the functioning of the elevator, the plaintiff's action should be dismissed.

Labor Law Section 241(6)

Labor Law § 241(6) requires, among other things that owners, contractors and their agents "provide reasonable and adequate protection and safety to the persons employed (at a construction work site)"; and it imposes a non-delegable duty upon owners, contractors, and their agents to comply with the safety rules and regulations embodied in an Industrial Code (the "Code") promulgated by the Commissioner of the Department of Labor. However, it has been held that only violations of those Code provisions, which set forth concrete safety requirements and specifications, can form the basis of an action brought under Labor Law S. 241(6). (Rizzuto v. L.A. Wenger Contracting Co., 91 NY2d 343 [1998]; Ross v. Curtis-Palmer Hydro-Electic Company, 81 NY2d 494 [1994] Lamela v. City of New York, 560 F. Supp. 2d 214 [EDNY 2008]; Wojcik v. 42nd Street Development Project, 386 F. Supp. 2d 442 [ SDNY 2005].) In addition, to be actionable, the rule alleged to have been violated must be applicable and relevant to the circumstances presented by the claim. ( See, Egan, supra ., 43 AD3d 692, at 694;Singleton v. Citnalta Const. Corp. 291 AD2d 393 [ 2d Dept.2002]; Thompson v. Ludovico, 246 AD2d 642 [2d Dept. 1998]; Vernieri v. Empire Realty Co., 219 AD2d 593 [2d Dept. 1995]); and even if relevant the plaintiff must provide proof that said violation was a proximate cause of plaintiff's injury. ( Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Abreo v. URS Greiner, 60 AD3d 878 [ 2d Dept. 2009].)

As stated above, the duty imposed by § 241(6) is nondelegable; and thus, to the extent that a plaintiff asserts a viable claim under § 241(6), it is not necessary to show that an owner, contractor, or their agents exercised supervision or control over the worksite in order to establish a right to recovery. Ross, supra . 81 NY2d 494, at 499 and ). However, Section 241 (6) of the Labor Law [ unlike 240 (1)] does not impose absolute liability for any injury arising from its breach, but rather " requires reference to outside sources to determine the standard by which a defendant's conduct must be measured". In other words, a violation of administrative rules adopted pursuant to the authority of §241(6) does not, ipso facto rise to the level of negligence as a matter of law. Zimmer, supra ., at 522; Rizzuto v. L.A. Wenger, 91 NY2d 343 [1998];Long v. Forest-Felhaber, 55 NY2d 554 [1982]. A violation of such a rule is only some evidence of negligence, and thus a factual determination must be made as to whether the safety measures employed were "reasonable and adequate" under the circumstances . While the violation of an Industrial Code provision constitutes some evidence of negligence " it is for a jury to determine whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances." ( Belcastro v. Hewlett-Woodmere Union Free School District Number 14, 286 AD2d 744, 746 [2d Dept.2001]; see also, Zimmer v. Chemung County Performing Arts, 65 NY2d 513 [1985], rearg denied, 65 NY2d 105; Tuohey v. Gainsborough Studios, Inc., 183 AD2d 636 [1st Dept. 1992]. [*12]

Moreover, since responsibility is not made "absolute", comparative negligence of the plaintiff, if any, will require an apportionment of fault. Zimmmer, supra . 65 NY2d 513, at 523.

Indemnification

Contractual indemnity provisions are quite common in construction agreements, and they usuallyfall into two broad categories, i.e., those in which the indemnitor agrees to provide indemnity irrespective of the indemnitor's fault, and those in which the indemnitor's fault is a necessary predicate for the obligation to indemnify. Since there are many variations on the wording used to provide contractual indemnity, the court is compelled to carefully parse and to scrutinize each contract provision and compare same with the fact pattern presented in each case.These agreements have spawned an abundance of litigation at both the local and appellate levels of the court; and the issues which arise from such agreements can be complex, not only because of the two categories above but also because of statutory restrictions and prohibitions (General Obligations Law § 5-322.1 [void agreements]; Worker's Compensation Law § 11 [grave injury requirement]); and most important, but also because of the vague language often employed in such agreements (either inadvertently or purposely by the drafter).

Once it is determined that an agreement to indemnify has been triggered, the inquiry shifts from the indemnitor to the indemnitee. If the obligation to indemnify has been triggered, it is then necessary to determine if the indemnitee was or was not negligent (or if an issue of fact as to the indemnitee's negligence exists). If the indemnitee has not been negligent, and the other contractual conditions are satisfied, the indemnitee is entitled to full indemnification under the contract.

However, where an indemnitee has been negligent, the indemnitee may be entitled to "partial indemnification". It must be noted that a non-negligent indemnitee may recover fully even if the agreement's language is overly-expansive and appears to violate General Obligations Law § 5-322.1 in that it purports to indemnify the indemnitee for its own negligence. Some agreements which appear to provide indemnification for an indemnitee's own negligence in violation of General Obligations Law § 5-322.1, have been held not to be void, and are stated to be enforceable in whole or in part. ( Brooks v. Judlow Contracting Inc., 11 NY3d 204 [2008] Dutton v. Charles Pankow Builders, Ltd, supra ).

For a full discussion of the issues associated with the two categories of indemnification and with partial indemnification, see Robinson v. City of New York, 4 Misc 3d 542, 779 NYS2d 757; affirmed, 22 AD2d 293, 882 N.Y.S. 48(1st Dept. 2005); Denci v. Bovis Lend Lease, Inc. (Supreme Court, Bronx County, Index No. 10497/05, decided 7/21/08); 20 Misc 3d 1123(A); 867 NYS2d 373).

DISCUSSION

Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986].) Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden [*13]has been satisfied, the burden of production (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus if the evidence on the issue is evenly balanced, the party that bears the burden must lose. (Director, Office of Workers Compensation Programs v. Greenwich Collieries, supra , 512 U.S. at 272; 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].)

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978].) Thus, when the existence

of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ).

Labor Law §240

A violation of Section 240(1) of the Labor Law by an owner , contractor, or one of their agents, is the predicate for the attachment of absolute liability. As oft stated " liability is contingent upon the existence of hazard contemplated in §240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated there..." Narducci, supra ., 96 NY2d 259, at 267.

In the case under consideration, the stacking and storage of a large amount of cement blocks presented a significant and foreseeable elevation related risk and one, which in the opinion of the Court, comes within the protections of the §240 (1). Those blocks should have been stacked and secured in a manner which would have prevented one or more from falling; and in any event, plaintiff should have been provided with a safety device which would have assisted him in the safe removal of the tarp. It was certainly foreseeable that, under the circumstances here presented, the failure of defendants to provide any of the safety devices of the kind enumerated in §240, would result in precisely the type of elevation related accident which occurred; and adequate proof has been provided that the failure to provide any of such safety devices was a proximate cause of the accident.

There is no evidence in the record to support a sole proximate cause defense; and given the lack of adequate instructions, also no proof to support a defense based on recalcitrance. Therefore, since the plaintiff's alleged comparative negligence is irrelevant under Labor Law Section 240, the motion by the plaintiff for summary judgment on his claim brought against defendants BHA and Macombs is granted; and the motions of these defendants, relating thereto, are denied .

Labor Law Secs. 241(6)

As stated above, the obligations imposed under §241 (6) (although not absolute) are non—delegable, and, therefore the owner/contractor defendants may be found to be responsible for negligent storage of the materials on the sidewalk. It was BHA's contractual responsibility to move the concrete blocks from the sidewalk to the job site; and in its contract with Joy, BHA among other things, assumed the responsibility to "confine operations ( including the storage of [*14]materials at that site) to areas permitted by law, ordinances and permits ...." Although it was BHA's concrete blocks which were improperly stored and secured, the owner Macombs had the contractual right ( as well as the statutory obligation under §241[6]) to cure BHA's failure to properly do so. Thus Macombs and BHA are each a party responsible to comply with §241 (6) and its Industrial Code sections 12 NYCRR 23-1.8 [c][1][protective apparel/head protection];12 NYCRR 23-2.1[a][1][ safe and orderly storage of materials]; and 12 NYCRR 23-1.7 (a)(1)[overhead hazards].

Each of the Industrial Code provisions at issue in this matter have been held to be specific

enough to form a basis for an action under Labor Law §241(6). See, Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824 [ 2d Dept. 2009 ] and Gallaraga v. City, 54 AD3d 808 [ 2d Dept. 2008] re:12 NYCRR 23-1.8(c)(1); Clarke v. Morgan Contracting Corp., 60 AD3d 523 [1st Dept. 2009] and Muthra v. Integral Construction Corp., 253 AD2d 637 [1st. Dept. 1998] re: 12 NYCRR 23-1.7(a)(1); Rosado v. Briarwood Farm, 19 AD3d 396 [2d Dept.2005] and Tarpey v. Kolanu Partners, LLC., 20 Misc 3d 1117(A), 861 NYS2d 21 [Sup. Qns. 2008] re: 12 NYCRR 23-2.1(a)(1); and thus, except for the claim made under Code provision 12 NYCRR 23-1.7(a)(1)[overhead hazards]) the motion by Macombs and BHA for dismissal of the claims brought under § 241(6) should be denied. However, the court finds, under the circumstances here presented, that although BHA and Macombs may have failed to fulfill their respective obligations under the Code sections 12 NYCRR 23-1.8(c)(1) and 12 NYCRR 23-2.1 (a)(1), sufficient questions of fact are presented as to the comparative fault of the plaintiff so as to deny summary judgment to the plaintiff and to have all fault issues under these Code sections submitted to the jury. (See, Mahoney v. Madeira Associates, 32 AD3d 1303 [4th Dept. 2006][ Section 12 NYCRR 23-1.8 [c][1]; Herman v. St. John's Episcopal Hospital, 242 AD2d 316 [2d Dept. 1997]. [ Section 12 NYCRR 23-2.1[a][1]).

That "overhead hazard" claim, made by plaintiff pursuant to 12 NYCRR 23-1.7 (a)(1), should be dismissed and defendants' motions granted, since that code provision does not appear relevant or applicable to the circumstances presented. For a violation of that section to occur, the rule itself specifically states that overhead protection be provided in areas "normally exposed to falling material or objects". Here there has been no proof presented that the area [ the sidewalk] where the plaintiff alleges to have been injured was "normally" exposed to such a risk; nor, in the opinion of this Court, did it become so by the temporary deposit of materials. It thus appears that this section has no applicability or relevance.

Labor Law S. 200

Since defendants Macombs and BHA exercised, or retained the contractual right to exercise, control over the site and the material where plaintiff was injured, their motions for dismissal of the action brought under Labor Law §200 are denied.

Indemnification

Macombs' cross-motion for summary judgment on its cross claim against BHA for contractual indemnification is granted to the extent that it be indemnified for any damages not attributable to its own acts of commission. Macombs, the owner, was clearly a party covered by the agreement; and the language agreed to by the parties in the contract clearly provides that BHA is to indemnify a covered party " regardless of whether or not such claim, damage or loss... [*15]is caused in part by a party indemnified here under..."

CONCLUSION

The plaintiff's motion for summary judgment against BHA and Macombs under Labor Law §240 (1), is granted; and the cross motions made by defendants with regard to that claim are denied.

The cross-motions by Macombs and BHA for dismissal of all of the plaintiff's claims made pursuant to Labor Law §200 and Labor Law §241 (6) as it relates to Code sections 12 NYCRR 23-1.8 [c][1] and 12 NYCRR 23-2.1[a][1] are denied.

The motions made for dismissal of plaintiff's claim made pursuant to Labor Law § 241 (6) as it relates to Code section 12 NYCRR 23-1.7(a)(1)(overhead hazards), are granted.

The motion for summary judgment on the cross claim brought by Macombs against BHA for indemnification is granted to the extent indicated above.

The cross-motion by Joy for summary judgment based on a Workers' Compensation Law defense, is granted without opposition.

Dated: June 15, 2009Hon. Paul A. Victor Footnotes

Footnote 1: An owner, within the meaning of the Labor Law, is not merely confined to the fee owner. Moreover, fee owners might also be exempt from the application of §240. For a more complete discussion and description of those persons and entities that might be deemed an owner or an owner exempt from the provisions of Labor Law §240 , see discussion of the issue in Abbatiello v. Lancaster Studio Associates,188 Misc 2d 665; 729 NYS2d 276 [ Sup Ct. Bronx County 2001]; affirmed 307 AD2d 788, 763 NYS2d 44 (1st Dept 2003); affirmed 3 NY3d 46 (2004); See also, Sanatass v. Consolidated Investing Company, 10 NY3d 333 [2008]; Celestine v. City, 59 NY2d 938 [1983]; Panek v. County of Albany, 99 NY2d 452 [2003]; Gordon v. Eastern Ry. Supply, 82 NY2d 555 [1993]; Holman v. City of New York, 181 Misc 2d 15 [ 1999].