Martinez v Bovis Lend Lease LMB, Inc.

[*1] Martinez v Bovis Lend Lease LMB, Inc. 2010 NY Slip Op 51904(U) [29 Misc 3d 1219(A)] Decided on October 15, 2010 Supreme Court, New York County Madden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2010
Supreme Court, New York County

Kathleen A. Martinez, Administratrix ad Prosequendum of the Estate of JOHN MARTINEZ, deceased, Petitioner,

against

Bovis Lend Lease LMB, Inc., ASHLAND PARTNERS, LLC, CLARETT CAPITAL, LLC, THE CLARETT GROUP LLC and FINEST WINDOW, INC., Defendants.



107289/07

Joan A. Madden, J.

Bovis Lend Lease LMB, Inc. ("Bovis") and Ashland Partners, LLC ("Ashland")(together,"the moving defendants") move, pursuant to CPLR 3212, for summary judgment dismissing the complaint against them, and for summary judgment on their third-party contractual and common-law indemnity claims against third-party defendants Finest Window, Inc. (Finest) and Three D Erectors (Three D) (motion seq. no. 002). Plaintiff opposes the motion and cross-moves for summary judgment as to liability on his Labor Law § 240(1) claim as against the moving defendants.[FN1] Finest and [*2]Three D oppose the moving defendants' motion to the extent it seeks summary judgment on the cross claims for indemnification.

Finest moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's negligence and Labor Law §§ 200, 240 and 241 (6) claims as against it (motion seq. no. 003).[FN2] Plaintiff does not oppose the motion and the moving defendants oppose it only to the extent Finest seeks to dismiss any cross claims asserted against it by them for contractual indemnity.[FN3]

BACKGROUND

Plaintiff's decedent (hereinafter referred to as "the decedent") was a union laborer employed by subcontractor Three D to perform window installations at a construction project known as Clarett Brooklyn Tower in Brooklyn, New York located at 230 Ashland Place, Brooklyn, NY ("the Project"). Ashland was the owner of the site, and hired Bovis as the Construction Manager on the Project. Bovis entered into a contract with Finest to install and purchase windows for the Project. Finest, in turn, entered into a subcontract with Three D to install the windows.

On the date of the accident, February 5, 2007, Three D was planning to perform some measurements for windows on the exterior wall on the third floor of the building. Three D had previously arranged with Bovis to halt the operation of two external construction hoists in order to perform the measurements on the windows.

Just before to the accident, Three D foreman, John Danzo (Danzo), who supervised decedent's work on the Project, was standing with Nancy Vazquez (Vazquez), the Bovis Project Engineer in charge of hoist shutdown procedures, who was in the process of stopping the hoists. Danzo EBT, at 29-31. According to Danzo, he requested Vazquez to instruct the hoist operators either to bring the hoists to the third floor, so that the workers could use the hoist to access the exterior of the building (id. at 33, 48-49), or to bring the hoist to the ground floor. Vazquez EBT, at 79. Vazquez testified that she had been told about the hoist shutdown the week before the incident (id. at 63-66), but she further stated that she never received any type of training regarding hoist shutdown procedures (id. at 40), nor was she [*3]aware of any written hoist shutdown procedures mandated by Bovis. Id. at 88-89.

At the time of the accident, the west hoist, operated by James Vella (Vella), an employee of Bovis, was stopped at the third floor, but the east hoist, operated by Renee Raczka (Raczka), a temporary substitute hoist operator employed by Bovis, had not yet stopped operating the hoist. According to Vazquez at the time of the accident she believed the hoist operators were supplied with two-way radios, and she tried to reach Raczka prior to the accident via her radio but she did not respond. Vasquez EBT, at 81. Vazquez testified that she later learned that the hoist operators did not have the two-way radios, even though it was her understanding that they were suppose to have them. Id. at 80-84.

In his affidavit, Vella states that, approximately 10 minutes before the accident, Vazquez and Danzo approached him and told him that they wanted to take exterior measurements and not to take the hoist below the fourth floor until notified that all was clear. According to Danzo, Vazquez was attempting to reach Raczka by radio for several minutes to have her bring the east hoist to the third floor when they noticed that the east hoist was descending. Danzo EBT, at 33-34.

At the same time that they noticed that the east hoist was descending, Danzo saw plaintiff standing on the edge of the building slab, outside the hoist gate and in the path of the moving east hoist. Id. at 40-42. Danzo later told the OSHA inspector who investigated the accident that he thought that plaintiff went outside the building because he, decedent, thought that the hoists had stopped running. Id. at 78-81. Danzo further stated that he did not believe that Vazquez alerted any of the workers that the hoists were still in operation, and that Vasquez was in charge of the hoist. Id. After striking plaintiff, the hoist lifted slightly, and decedent rolled off and fell to the bottom of the hoistway. Id. at 43, 47-48. Danzo, who witnessed the accident, believes that decedent was killed by the crush of the hoist, and was already dead before he fell. Id. at 51-53, 64.

According to Danzo, before the accident, plaintiff was on the interior doing work, and then subsequently he saw him on the exterior edge of the building. Danzo EBT at 109, 114-115. Danzo stated that he had told plaintiff that he, Danzo, would let plaintiff know when the hoists had been stopped, and at the point they could begin work. Id. at 125. Furthermore, according to Danzo, if the hoists had been stopped, plaintiff's work would have been performed farther away from the area from which he fell. Id. at 67-70.

Plaintiff was provided with a lanyard and harness, which he was wearing at the time of the accident, but which he did not [*4]connect to a tie-off, available to him directly over his head. Id. at 71, 115-117. Plaintiff's harness was produced at Danzo's deposition, and Danzo testified that Three D employees inspect their harnesses every morning, and that he could not see anything wrong with plaintiff's harness. Id. at 122-123. However, Danzo further stated that he did not believe that having the lanyard tied off would have prevented plaintiff from being struck with and crushed by the hoist. Id. at 74-75.

Raczka, the east hoist operator, testified that she is a licensed and experienced hoist operator, and no evidence has been presented that she was operating the hoist in an unsafe manner. Raczka EBT, at 18-20. Raczka indicated that she was operating the hoist without a radio, using audible signals, including yelling and banging on pipes, which she testified that she understood. Id. at 22.

The accident report filed by Bovis immediately after the accident, states:

At 8:45 am on February 5, 2007, while attempting to

use a string line and level to ensure the window sills

on opposite sides of the Hoist access were installed in

the proper location on the side of the building that

faces south on the 3rd floor Mr. Martinez was struck

by the east hoist car as it traveled downward and was

pinned between the bottom of the hoist car and the 3rd

floor slab. When the hoist car was lifted and Mr.

Martinez was released his position he fell down the

hoist shaft approximately 29 feet, coming to rest on

the east side of the hoist pad. First aid/CPR were

administered to Mr. Martinez at the scene. Mr. Martinez

was pronounced dead at 9:19 am at the hospital.

Vazquez testified that she spoke to someone from the Bovis safety department after the incident, but that she did not know if the description of the accident in the above-quoted accident report was the one that she gave. She further stated that she never prepared any written statement about the accident. Vazquez EBT, at 95-100.

The owner of the building, Ashland Partners, LLC, did not have any representatives on site and had no direct involvement in the incident.

In the amended verified complaint, plaintiff asserts causes of action against defendants based on common-law negligence and violations of Labor Law §§ 200, 240 and 241 (6), and violations of federal OSHA regulations including, but not limited to, 29 CFR 1926.21 (b), 1926.503 (c), 1926.501 (b) (1) and 1926 502 (a) (2), plus violations of the Industrial Code found at New York City Code of Rules and Regulations, 12 NYCRR §§ 23-1.16, 23-2.5, 23-6.1, 23-6.3 and 23-7.2.

The moving defendants argue that they are entitled to [*5]summary judgment dismissing plaintiff's Labor Law § 240(1) claim as the plaintiff's "unforeseeable act of entering the hoist shift before he was told that the hoists were shut down and it was safe to do so was the sole proximate cause of the accident" (moving defendants' supporting affirmation at 10)[FN4]. The moving defendants also argue that the Labor Law § 241(6) claim must be dismissed as plaintiff failed to plead any Industrial Code provisions sufficient to support the claim. As for claims under Labor Law § 200 and for common law negligence, the moving defendants assert that they were not negligent as they did not create any hazardous condition involving the hoist and had no control over how decedent performed his work.

The moving defendants also argue that they are entitled to summary judgment on their cross-claim against Finest for contractual indemnification, including costs and attorneys' fees based on a provision in Bovis' subcontract with Finest. They also seek summary judgment on their cross claim against Three D for common law indemnity.

Plaintiff opposes the motion and argues that it is entitled to summary judgment on its Labor Law § 240 claim. With respect to the 240(1) claim, plaintiff argues that the record establishes as a matter of law that the hoist, which struck and killed decedent was not operated in a safe manner. Specifically, plaintiff argues that record establishes that Bovis had no hoist shut down procedure, failed to train Vasquez in such procedures, and violated its own practice by failing to provide the hoist operators with two-way radios. Moreover, plaintiff asserts that under these circumstances, it cannot be said that any actions or omissions by the decedent were the sole proximate cause of his death.

With respect to the § 241(6) claim, plaintiff asserts that Industrial Code § 23-7.2(c)(3)(ii) concerning partitions for unenclosed exteriors for hoists applies here and submits an expert affidavit in support of its position.

As for the negligence claim and the claim under Labor Law § [*6]200, plaintiff argues that the record raises factual questions as to whether Bovis negligently operated the hoist and whether the failure to properly supervise its operation were a substantial factor in causing the accident. Plaintiff also relies on the contract between Ashland and Bovis which gives Bovis, as the construction manager for the Project, sole responsibility over "construction means, methods, techniques, sequences and procedures and for coordinating all portions of work under the contract..."

Finest opposes that part of the moving defendants' motion seeking summary judgment on its cross-claim against it for contractual indemnification, asserting that record raises triable issues of fact as to whether the accident was caused solely by Bovis' negligence. Three D opposes the motion seeking summary judgment based on common law indemnification, asserting that there are questions of fact as to Bovis' negligence, and whether it was negligent.

In its motion, Finest asserts that the complaint should be dismissed as against it because: (1) it is not the owner or general contractor of the construction project; (2) it did not control, manage, supervise or direct plaintiff; and (3) it did not control, manage or supervise the hoisting operations at the construction project.

DISCUSSION

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case..." Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).

Labor Law Section 240(1) Claim

Labor Law § 240 (1), commonly known as the Scaffold Law, provides as follows:

"All contractors and owners and their agents . . . 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." [*7]

The purpose of the statute is "to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident." Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 (1991) (internal quotation marks and citations omitted). The statute imposes a nondelegable duty and absolute liability on owners and contractors for failing to provide adequate safety devices to workers who sustain gravity-related injuries. Jock v Fien, 80 NY2d 965, 967 (1992); Rocovich, 78 NY2d at 513. Labor Law § 240 (1) applies to "risks related to elevation differentials," including "those related to the effects of gravity where protective devices are called for . . . because of a difference between the elevation level of the required work and a lower level" Rocovich, 78 NY2d at 514.

To impose liability under Labor Law § 240 (1), the plaintiff need only prove: (1) a violation of the statute (i.e., that the owner or general contractor failed to provide adequate safety devices); and (2) that the statutory violation proximately caused his or her injuries. Blake v Neighborhood Hous. Servs. of New York City, 1 NY3d 280, 290 (2003); Ramos v. Port Authority of New York and New Jersey , 306 AD2d 147, 148 (1st Dept 2003). Proximate cause is demonstrated based on a showing that a "defendant's act or failure to act as the statute requires was a substantial cause of the events which produced the injury.'" Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555, 562 (1993)(citation omitted). It is not necessary for plaintiff to demonstrate that the precise manner in which the accident occurred, or the extent of the injuries, was foreseeable. Rodriguez v. Forest City Jay Street Associates, 234 AD2d 68 (1st Dept. 1996), citing Public Administrator of Bronx County v. Trump Village Construction Corp., 177 AD2d 258 (1st Dept 1991).

Comparative negligence is not a defense. See Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 289-290 (2003). However, "a defendant is not liable under Labor Law § 240 (1) [when a] plaintiff's own negligence was the sole proximate cause of the accident." Id. at 290.

Under these principles, plaintiff is entitled to summary judgment as to liability under Labor Law § 240(1), as the record shows that the failure to provide a properly operated hoist resulted in the hoist striking decedent and resulted in his death, while he was on an elevated work area. Moreover, although [*8]plaintiff was provided with safety devices, including a harness and lanyard, these devices were inadequate to protect him from being crushed by the hoist and thus do not preclude recovery under Labor Law § 240(1). See e.g., Lopez v. Boston Properties, Inc., 41 AD3d 259, 260 (1st Dept 2007)(noting that "the fact that the safety line and harness may have spared plaintiff from death by arresting his fall before he struck the ground does not preclude recover under Labor Law § 240"); Kyle v. City of New York, 268 AD2d 192 (1st Dept 2000), lv denied, 97 NY2d 608 (2002)(holding that where safety devices of harness, lanyards and retractable safety lines known as "yo-yos" did not protect plaintiff from injuries after falling 30 feet, the trial court erred in denying plaintiff summary judgment as to liability under Labor Law § 240(1)).

In addition, contrary to the moving defendants' argument, it cannot be said that plaintiff's act of entering the hoist shaft before being told the hoists were shut down was the sole proximate cause of the accident. To establish that a plaintiff's injuries were a sole proximate cause of his own negligence it must be shown that the plaintiff "had adequate safety devices available: that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured." Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 (2004); see also, Kosavick v. Tishman Construction Corp. of New York, 50 AD3d 287 (1st Dept 2008).

Here, it cannot be shown that the decedent's use of available safety devices would have prevented his injuries, and therefore summary judgment is warranted on plaintiff's Labor Law § 240(1) claim. Moreover, decedent's decision to enter the area where the hoist descended while arguably negligent was, at most, evidence of comparative negligence which does not provide a defense to a claim under Labor Law § 240(1). See Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d at 289-290.

Accordingly, plaintiff is entitled to summary judgment on its Labor Law § 240(1) claim.

Labor Law Section 241(6)

Labor Law § 241(6) requires that owners and contractors " provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." Ross v Curtis-Palmer Hydro-Electric Co., supra, 81 NY2d at 502. Claimants must cite specific violations of the [*9]Industrial Code regulations for section 241(6) to apply. See, Amato v State of New York, 241 AD2d 400 (1st Dept 1997), lv denied 91 NY2d 805 (1998). "Only a violation of the State Industrial Code and regulations promulgated by the State Commissioner of Labor may serve as a basis for liability under that statutory section." Heller v 83rd St. Investors Ltd. Partnership, 228 AD2d 371, 372 (1st Dept), lv denied, 88 NY2d 815 (1996).

Here, plaintiff only argues the applicability of Industrial Code § 23-7.2 (c)(3)(ii) to the instant matter, and so all other sections of the Industrial Code and the OSHA provisions cited by plaintiff for support of his cause of action under Labor Law § 241 (6) are deemed abandoned.

Industrial Code § 23-7.2 is entitled Temporary personnel or workmen's hoists, and subsection (c)(3)(ii), which concerns "unenclosed exterior hoistways," provides that:

When exterior hoistways for personnel hoists are unenclosed, the following requirements shall apply: (ii) Where any point on a moving car or counterweight passes less than eight feet from the floor, scaffold platform or other work surface or position, such floor, scaffold platform or other work surface so exposed shall be provided with a partition of at least six feet in height. Such partition shall extend horizontally at least five feet past the horizontal project of the path of the car or counterweight. Such partition shall be equal in construction to hoistway enclosures as specified in this section.

In support of the applicability of this section, plaintiff submits the expert affidavit of Kathleen Hopkins who is a Certified Safety Manager with over twenty-nine years of site experience in the construction industry. Her opinion is based, inter alia, on her review of the pleadings, deposition transcripts, site photographs, contracts, and Bovis investigation report and the OSHA Inspection report.

Ms. Hopkins opines that Industrial Code § 23-7.2 (c)(3)(ii) was violated when Bovis:failed to ensure that the exposed floor surface on each side of the hoist care access gate on the 3rd floor was less than eight feet from the moving hoist car and provided with at least a six feet in height partition of exterior grade plywood at least three-eighths of an inch thick or of wood slats not less than three quarters inch thick installed horizontally and spaced not more than two inches apart or of other material of equivalent strength at least five feet. Simply put, the Decedent should not have been able to access the hoist landing in front of the exterior side of the hoist gate.

Here, based on the record and Hopkins' opinion, there is a sufficient basis for finding Industrial Code § 23-7.2 (c)(3)(ii) [*10]applicable to the facts of this case, and plaintiff therefore has a viable claim under Labor Law § 241(6).

Accordingly, the moving defendants' motion seeking summary judgment dismissing this claim is denied.

Labor Law § 200 and Negligence Claim

To establish a prima facie case of common-law negligence, a plaintiff is required to show that a defendant either created or had actual notice of the alleged dangerous or defective condition, and that the alleged dangerous condition was the proximate cause of the injury. See, Pouso v City of New York, 177 AD2d 560 (2d Dept 1991). An owner's or general contractor's common-law duty to maintain a safe workplace is codified in Labor Law § 200. See, Gasper v Ford Motor Co., 13 NY2d 104 (1963).

"Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to owner under the common law or under Labor Law § 200." Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993). Moreover, liability will not be found under 200 "solely because the owner had notice of the unsafe manner in which work is performed." Id., at 878.

To be charged with liability under Labor Law § 200, an owner or general contractor must perform more than their "general duty to supervise the work and ensure compliance with safety regulations." De La Rosa v Philip Morris Management Corp., 303 AD2d 190, 192 (1st Dept 2003); see also Vasiliades v Lehrer McGovern & Bovis, Inc., 3 AD3d 400 (1st Dept 2004); Reilly v Newireen Associates, 303 AD2d 214 (1st Dept), lv denied, 100 NY2d 508 (2003)."[M]onitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200, [n]or is a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons." Dalanna v City of New York, 308 AD2d 400, 400 (1st Dept 2003). Instead, it must be shown that the owner " had authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition'." Hughes v. Tishman Construction Corp., 40 AD3d 305 (1st Dept 2007)(emphasis in the original), quoting, Ruzzuto v. Wenger Construct. Co., 91 NY2d at 352.

In the instant case, the contract between the owner and Bovis specifies Bovis' supervisory authority over the [*11]construction project, including the coordination of the work.[FN5] In addition, the record shows that Bovis' employee, Vasquez was in charge of the hoist operations which caused the accident, and that the hoist operators were Bovis employees. Moreover, there are triable issues of fact as to whether Bovis' inadequate hoisting procedures, including the lack of training, procedures and the absence of a system for effectively communicating with the operators of the hoists, created the condition that resulted in the accident. Accordingly, summary judgment is not warranted in Bovis' favor with respect to the claims against it under Labor Law § 200 and for common law negligence.

In contrast, as Ashland was not present at the worksite and was not responsible for any of the work performed on the Project, Ashland is entitled to summary judgment dismissing the negligence and Labor Law § 200 claims against it.

Cross Claims For Indemnification

The moving defendants also seek summary judgment on their cross claims for contractual indemnification against Finest and for common law indemnification against Three D.

The claim for contractual indemnification is based on the Article 12 of the subcontract between Bovis and Finest: To the fullest extent permitted by law, Subcontractor [Finest] agrees to defend, indemnify and save harmless Contractor [Bovis] and Owner [Ashland] ... from and against [*12]any claim, cost, expense, or liability (including attorney's fees, and including costs and attorney's fees incurred in enforcingthis indemnity), attributable to bodily injury ... caused by, arising out of, resulting from, or occurring inconnection with the performance of the Work by Subcontractor, ... whether or not caused in part by the

active or passive negligence or other fault of a party

indemnified hereunder; provided, however, Subcontractor's

duty hereunder shall not arise if such injury ... is

caused by the sole negligence of a party indemnified

hereunder.

Here, as Finest argues, there are triable issues of fact as to whether the accident was the result of Bovis' sole negligence which would render the provision inapplicable. Moreover, while the record shows that Ashland was not involved in the accident and therefore would be presumably entitled to contractual indemnification, such a finding would be premature at this juncture, particularly as it is unclear whether it can be said that the accident arose from Finest's work which was subcontracted to Three D. See Bovis Lend Lease LMB Inc. v Garito Contracting, Inc., 65 AD3d 872, 875 (1st Dept 2009)("In the absence of a jury finding in the underlying action, any claim of an entitlement to indemnification would be premature.");Keegan v Swissotel New York, Inc., 262 AD2d 111 (1st Dept 1999)(it is preferable to defer rulings on indemnification until liability has been determined at trial).[FN6]

The moving defendants are also not entitled to summary judgment on their claims for common law indemnification as against Three D. A party seeking common law indemnification must show that it is not guilty of any negligence and that the party from which it seeks indemnification was negligent. Correia v. Professional Data Mgmt.,Inc., 259 AD2d 60 (1st Dept 1999). Here, there are issues of fact as to whether Bovis was negligent and as to whether any negligence by Three D caused the accident, precluding summary judgment.

Finest's Motion

Finest's motion for summary judgment dismissing plaintiff's claims against it is granted as there is no evidence it had any role at the Project.

[*13]

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that Bovis Lend Lease LMB, Inc.'s and Ashland Partners, LLC's motion for summary judgment (motion sequence number 002) is granted to the extent of dismissing the Labor Law § 200 and common law negligence claim against Ashland Partners, LLC and is otherwise denied; and it is further

ORDERED that plaintiff's cross motion seeking summary judgment on the issue of liability as against Bovis Lend Lease LMB, Inc. and Ashland Partners, LLC on its Labor Law § 240(1) claim is granted; and it is further

ORDERED that Finest Window, Inc.'s motion (motion sequence number 003) for summary judgment dismissing the complaint as against it is granted and the complaint is hereby severed and dismissed as against Finest Window, Inc., and the Clerk is directed to enter judgment in favor of said defendant with costs and disbursements to said defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the remainder of the action shall continue; and it is further

ORDERED that the parties shall appear for a pretrial conference on October 28, 2010, at 3:00 pm, in Part 11, room 351, 60 Centre Street, New York, NY.

Dated: October , 2010

ENTER:

____________________________

J.S.C. Footnotes

Footnote 1:The action was discontinued as against defendants Clarett Capital, LLC and The Clarett Group, LLC by stipulation among the parties on November 17, 2008.

Footnote 2:Motion sequence numbers 002 and 003 are consolidated for disposition.

Footnote 3: Initially, Finest alternatively sought an order granting it summary judgment on its cross claim for common-law indemnification as against Three D, but subsequently withdrew that portion of its motion.

Footnote 4:The "sole proximate cause" defense is distinguishable from the "recalcitrant worker" defense, where an injured worker refuses to use safety devices provided by the owner or employer. Hagins v State, 81 NY2d 921 (1993). To succeed with a "recalcitrant worker" defense, an owner, general contractor, or construction manager must show a "plaintiff ... disobeyed any immediate specific instructions to use an actually available safety device or to avoid using a particular unsafe device." Walls v Turner Const. Co., 10 AD3d 861 (1st Dept 2004), aff'd, 4 NY3d 861 (2005). In this case, there is no evidence to support this defense and the moving defendants do not argue that it applies.

Footnote 5:Specifically, paragraph 3.3 of the contract between the Ashland and Bovis provides that:

The Contractor [Bovis] shall supervise and direct the

Work, using the Contractor's best skill and attention.

The contractor shall be solely responsible for and have

control over construction means, methods, techniques,

sequences and procedures for coordinating all portions

of the Work under the Contract, unless the Contract

Documents give other specific instructions concerning

these matters. If the Contract Documents give specific

instructions concerning construction means, methods,

techniques, sequences or procedures, the Contractor

shall evaluate the jobsite safety of such means, methods,

techniques, sequences or procedures. ... Nothing herein

is intended to preclude the Contractor from delegating

responsibility and control over construction means methods,

techniques, sequences and procedures to Subcontractors

performing portions of the Work provided, however, that the

delegation shall not relieve the Contractor of its

ultimate responsibility to Owner."



Footnote 6: In Picchione v Sweet Construction Corp., 60 AD3d 510 (1st Dept 2009), indemnification was granted on summary judgment motions, but only after the indemnitor was found by the court to be liable for the plaintiff's injuries, which has yet to be found in the case at bar.