Inguil v Rochdale Vil., Inc.

[*1] Inguil v Rochdale Vil., Inc. 2010 NY Slip Op 52036(U) [29 Misc 3d 1227(A)] Decided on November 17, 2010 Supreme Court, New York County Friedman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2010
Supreme Court, New York County

Alex Inguil, Plaintiff,

against

Rochdale Village, Inc., and Marion Scott Real Estate, Inc., Defendants.



102976/07



Attorney for Plaintiff

Robert A. Siegel, Esq.

205 E. 60th St.

New York, New York 10022

Attorneys for Defendant and Third-Party Plaintiff

Robert Bernstein, Jr., Esq.

Baker Greenspan & Bernstein, Esqs.

2099 Bellmore Ave.

Bellmore, NY 11710

Attorneys for Third-Party Defendants

Cindy Varrecchia

Amhuty, Demers & McManus Esqs.

200 I.U. Willets Rd. Albertson, NY 11507

Marcy S. Friedman, J.

In this Labor Law action, plaintiff Alex Inguil sues for injuries he sustained from a fall while removing "fill" from a cooling tower at a power plant. Plaintiff moves for partial summary judgment on his Labor Law §§ 240(1) and (2), and 241(6) claims against defendant Rochdale Village, Inc. (Rochdale).[FN1] Rochdale and Marion Scott move for summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims, granting them a judgment on their contractual indemnification claim against third-party defendant Rosenwach Tank Co., LLC (Rosenwach), and dismissing Rosenwach's counterclaim against them. By separate motion, Rosenwach moves for partial summary judgment dismissing plaintiff's lost wages claim.

Rochdale owned the premises where the accident occurred, which consisted of a residential co-op with an independent power plant to generate its own electricity. Rosenwach was a contractor retained by Rochdale to perform an upgrade to two cooling towers located on the power plant roof. Plaintiff was employed as a laborer for Herbert Rose, Inc., a company owned by Rosenwach.

According to plaintiff's testimony, the accident occurred as follows: On November 30, 2005, plaintiff was assigned to remove old filters from one of the cooling towers, which were resting on a metal grid that was suspended about three floors above a metal water pan. (P.'s Dep. at 38, 47.) Plaintiff's work required him to stand on a wooden plank, approximately 10 feet long and 12 inches wide, which was positioned on the metal grid. (Id. at 48, 52-53.) Each time plaintiff would finish removing a set of filters, he would move the plank over to a new location in order to begin removing a new set of filters. (Id. at 57.) At the time of the accident, plaintiff had just finished throwing a single filter to his right for his coworkers to take away. As he bent down to grab another filter, one of the filters he had already moved "came back" and struck his leg, causing him to lose balance. The plank then slipped, and plaintiff fell into the metal water pan below. (See id. at 58-59, 70, 155-156.)

The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment." (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Once such proof has been offered, to defeat summary judgment "the opposing party must show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. [b])." (Zuckerman, 49 NY2d at 562.)

Labor Law § 240(1) Claim

Labor Law § 240 (1) provides: 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 [*2]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.

"The purpose of the section is to protect workers by placing the ultimate responsibility' for worksite safety on the owner and general contractor, instead of the workers themselves." (Gordon v Eastern Ry. Supply, Inc., 82 NY2d 555, 559 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991].) "Thus, section 240(1) imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury." (Gordon, 82 NY2d at 559.)

In support of his motion, plaintiff submits his deposition in which he testified that he was working on one unsecured plank, and that there were no safety railings. (P.'s Dep. at 71-72.) He further testified that he was not given any safety equipment. (See id. at 21.) He also submits an affidavit in which he attests that there were no safety harnesses, safety nets, or "suitable scaffold or platforms for use in the performance of our work." (P.'s Aff. In Support, ¶ 10.) Arlindo Friere, Herbert Rose's manager at the site, similarly testified that the workers did not use safety belts at the site, and that safety nets were not used or available. (See Arlindo Friere Dep. at 185-186.) Artur Friere, Rosenwach's supervisor at the premises, testified that one plank was insufficient on which to work (Artur Friere Dep. at 144-145), and that had a safety net been in place, plaintiff's fall would not have occurred. (Id. at 164-166.) Based on this testimony, plaintiff makes a prima facie showing that Rochdale violated Labor Law § 240(1), and that such violation was a proximate cause of his injuries.

Defendant Rochdale fails to submit any evidence in opposition to the branch of plaintiff's motion seeking a judgment on his Labor Law § 240(1) claim. Contrary to third-party defendant Rosenwach's contention, Arlindo Freire's assertion that safety belts were present on the site and that plaintiff was instructed how to use them (see Friere Dep. at 29, 35), is insufficient to raise a triable issue of fact as to whether plaintiff was a recalcitrant worker or the sole proximate cause of his accident. (See Gallagher v The New York Post, 14 NY3d 83, 88-89 [2010] [defendants failed to raise a triable issue of fact as to whether plaintiff was recalcitrant where there was no evidence that plaintiff "had been told to use such safety devices" and "unreasonably chose not to use them."].) Arlindo Freire's conclusory assertion that "[w]e always tell them that they have to use safety belts" (see Friere Dep. at 29), is insufficient to raise a triable issue of fact as to whether plaintiff Inguil was instructed to use a safety device. Moreover, even assuming arguendo that plaintiff was aware of the presence of safety belts at the site, defendants fail to show that plaintiff unreasonably chose not to use them. Indeed, when asked if there was a reason why a worker might not use the safety belt, Arlindo Friere acknowledged that there was, stating: "In that particular job yes because they had to keep going from one side to another and along the network of supports that were there." (See id.) He also acknowledged that none of the laborers was using a safety belt on the day of the accident. (Id.) Similarly, he testified that they did not use safety nets at the job site and that safety nets "[w]ould be a good idea on one hand, but it would not be a good idea because we have to send the fill down so it would be in the way." (Id. at 187.)

The court is also unpersuaded by defendants' assertion that summary judgment is not proper because there is a dispute as to the method that was being used to lower the fill at the time [*3]of the accident. Defendants make no showing that such method in any way affected the safety devices needed to provide plaintiff with adequate protection against an elevation-related risk in removing and lowering the fill.

The court accordingly holds that plaintiff should be awarded judgment on his Labor Law § 240(1) claim as to liability against defendant Rochdale. Plaintiff acknowledges on his reply that a judgment against third-party defendant Rosenwach would not be proper, as plaintiff has not asserted a direct claim against Rosenwach. (P.'s Reply, ¶ 4.) The court need not address plaintiff's claim under Labor Law § 240(2) because, as defendants correctly assert, plaintiff failed to specifically allege a violation of that section in his complaint. (See Smizaski v 784 Park Ave. Realty, Inc., 264 AD2d 364 [1st Dept 1999].)

Labor Law § 241(6) Claim

Labor Law § 241(6) provides: All contractors and owners and their agents * * * shall comply with the following requirements:6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.

It is well settled that this statute requires owners and contractors and their agents " to 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-Elec. Co., 81 NY2d 494, 501-502 [1993].) In order to maintain a viable claim under Labor Law § 241(6), the plaintiff must allege a violation of a provision of the Industrial Code that mandates compliance with "concrete specifications," as opposed to a provision that "establish[es] general safety standards." (Id. at 505.) "The former give rise to a nondelegable duty, while the latter do not." (Id.)

Here, plaintiff asserts numerous violations of the Industrial Code in his second supplemental bill of particulars. On plaintiff's motion for summary judgment, however, plaintiff alleges violations only of the following Industrial Code provisions: 23-1.7(b)(1)(iii)(a), (b), and (c); 23-1.7(f); and 23-5.1(e), (f), (h), and (j).[FN2] (12 NYCRR.)

Section 23-1.7(f) is inapplicable to the facts of this action, as there is no showing that plaintiff was working at a level that required a stairway, ramp, or runway. (See Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711 [2d Dept 2007], lv denied 10 NY3d 701 [2008].) Section 23-5.1(f), requiring that scaffolds be maintained in good repair, is too general to provide a basis for liability under section 241(6). (See Schiulaz v Arnell Constr. Corp., 261 AD2d 247 [1st Dept 1999].)

However, plaintiff makes a prima facie showing that Rochdale's violation of Industrial [*4]Code § 23-1.7(b)(1)(iii)[FN3] was a proximate cause of the accident. It is undisputed that plaintiff was not provided with planking compliant with this section, or with a life net or a safety belt. Moreover, it is undisputed that he fell more than 15 feet to the ground. (See Bell v Bengomo Realty, Inc., 36 AD3d 479 [1st Dept 2007].) Similarly, plaintiff makes a prima facie showing that the plank with which he was provided, and which served as the functional equivalent of a scaffold, did not comply with Industrial Code §§ 23-5.1(e), (h), and (j), which provide specific requirements for the erection of scaffolds and scaffold planks. In opposition, defendants submit no evidence that the plank had safety railings or otherwise complied with the requirements of these sections.

Defendants' further contention that plaintiff was standing with only one foot on the scaffold is insufficient to raise a triable issue of fact as to whether failure to comply with the Industrial Code provisions was a contributing cause of plaintiff's fall. Regardless of where plaintiff was standing, as held above, the inadequacy of the plank as a safety device was a proximate cause of plaintiff's accident.

The court notes that it does not rely upon the affidavit of plaintiff's expert in finding that the above Industrial Code provisions were violated. Thus, the court need not address the issue of whether plaintiff's submission of his expert affidavit was timely.

The court accordingly holds that plaintiff's motion should be granted to the extent of awarding plaintiff judgment as to liability against defendant Rochdale on plaintiff's Labor Law

§ 241(6) claim to the extent that this claim is based on Industrial Code §§ 23-1.7(b)(1)(iii), and 23-5.1(e), (h), and (j).

Labor Law § 200

The branch of Rochdale's and Marion Scott's motion seeking dismissal of plaintiff's claims under Labor Law § 200 and for common law negligence is unopposed and will therefore be granted.

Defendant Marion Scott

Marion Scott, the managing agent of the premises, does not move for summary judgment dismissing plaintiff's claims against it under Labor Law §§ 240(1) and § 241(6). Plaintiff does not move for summary judgment against Marion Scott on these claims, reasoning that Marion Scott had "no role, supervision, or other say in the means and methods of that particular construction project which is the subject of this action." (Aff. of Robert Siegel [P.'s attorney] in Support, ¶ 5.) Plaintiff's explanation for not moving against Marion Scott is consistent with governing case law, which holds that "[w]hen the work giving rise to [the duty to conform to the requirements of section 240(1) ] has been delegated to a third party, that third party then obtains [*5]the concomitant authority to supervise and control that work and becomes a statutory agent' of the owner or general contractor. Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law." (Walls v Turner Constr., 4 NY3d 861, 864 [2005] [internal quotation marks and citations omitted, brackets in original] [construction manager]; Voultepsis v Gumley-Haft-Klierer, Inc., 60 AD3d 524 [1st Dept 2009] [managing agent]. See generally Blake v Neighborhood Hous. Servs. of New York City, 1 NY3d 280, 292-293 [2003].) Accordingly, the court searches the record on plaintiff's motion and grants summary judgment to Marion Scott to the extent of dismissing plaintiff's complaint against it.

Indemnification

Defendants Rochdale and Marion Scott move for summary judgment on their third-party claim for contractual indemnification against Rosenwach. Section 11 of the contract between Rochdale and Rosenwach provides that: The Contractor [Rosenwach] shall, in addition to the provisions of Section 12, indemnify and hold harmless the Authority/Company [Rochdale], its members, officers, agents and employees and the Division against the risk of loss, damage, or liability caused by personal injuries, wrongful death and property damages arising out of or in connection with the performance of the Contract, whether sustained before or after the completion thereof.

Thus, the contract requires Rosenwach to indemnify Rochdale when a claim arises out of Rosenwach's work, even if Rosenwach has not been negligent. (See Brown v Two Exch. Plaza Partners, 76 NY2d 172 [1990]; Correia v Professional Data Mgt., Inc., 259 AD2d 60 [1st Dept 1999].)

The court rejects Rosenwach's contention that the indemnification provision is unenforceable on the ground that it provides for indemnification even where the injuries are caused by the indemnitee's own negligence. It is settled that a contractual provision which provides for indemnification of a party for its own negligence is enforceable where the evidence at trial shows that the party was not negligent. (See Hawthorne v South Bronx Community Corp., 78 NY2d 433 [1991]; Brown, 76 NY2d at 179. See also Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 n5 [1997]; Colby Zeigler-Bonds v Structure Tone, Inc., 245 AD2d 80 [1st Dept 1997].) Here, Rosenwach submits no evidence to show that Rochdale or Marion Scott negligently caused or contributed to plaintiff's accident. Accordingly, the motion for contractual indemnification should be granted. The branch of Rochdale's and Marion Scott's motion seeking dismissal of Rosenwach's counterclaim for contribution against them is unopposed, and will be granted.

Plaintiff's Lost Wages Claim

Third-party defendant Rosenwach moves for dismissal of plaintiff's claim for lost wages based on his status as an undocumented worker. On this record, Rosenwach's motion should be denied. Triable issues of fact exist as to whether plaintiff's employer was induced to hire plaintiff by his submission of false documentation of his immigration status. (Macedo v J.D. Posillico, Inc., 68 AD3d 508 [1st Dept 2009]; Coque v Wildflower Estates Devs., Inc., 58 AD3d 44 [2d Dept 2008]. See also Balbueno v IDR Realty LLC, 6 NY3d 338 [2006].) In so holding, the court [*6]notes that plaintiff's employer did not complete an Employment Eligibility Verification (I-9) form. (See Coque, 58 AD3d at 54.)

It is accordingly hereby ORDERED that plaintiff's motion for summary judgment is granted to the extent that it is

ORDERED that plaintiff Alex Inguil is awarded summary judgment as to liability against defendant Rochdale on his claims under Labor Law § 240(1), and under § 241(6) to the extent based upon violations of Industrial Code §§ 23-1.7(b)(1)(iii) and 23-5.1(e), (h), and (j); and it is further

ORDERED that plaintiff's complaint is dismissed as against defendant Marion Scott; and it is further

ORDERED that the motion of defendants Rochdale and Marion Scott is granted to the extent that it is

ORDERED that plaintiff's claims against defendants Rochdale and Marion Scott under Labor Law § 200 and for common law negligence are dismissed; and it is further

ORDERED that defendants Rochdale and Marion Scott are awarded judgment as to liability on their contractual indemnification claims against third-party defendant Rosenwach; and it is further

ORDERED that the counterclaim of third-party defendant Rosenwach against third-party plaintiffs Rochdale and Marion Scott is dismissed; and it is further

ORDERED that the motion of third-party defendant Rosenwach is denied.

This constitutes the decision and order of the court.

Dated:New York, New York

November 17, 2010

___________________________

MARCY FRIEDMAN, J.S.C. Footnotes

Footnote 1:Plaintiff's notice of motion states that he is also moving for summary judgment against defendants under Labor Law § 200. In reply, plaintiff clarifies that he is not seeking judgment under that section. (See P.'s Reply, ¶ 3).

Footnote 2:Defendants fail to demonstrate prejudice as a result of plaintiff's service of the second supplemental bill of particulars for the first time on the summary judgment motion. The newly cited Industrial Code provisions presented no new theories of liability. (See Latino v Nolan & Taylor-Howe Funeral Home, Inc., 300 AD2d 631 [2d Dept 2002].)

Footnote 3:Industrial Code §23-1.7(b)(1)(iii) provides:

Where employees are required to work close to the edge of such [a hazardous] opening, such employees shall be protected as follows:

(a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or

(b) An approved life net installed not more than five feet beneath the opening; or

(c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.