Chrabaszcz v Western Loft Equities LLC

[*1] Chrabaszcz v Western Loft Equities LLC 2010 NY Slip Op 52307(U) [30 Misc 3d 1206(A)] Decided on December 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2010
Supreme Court, New York County

Stanislaw Chrabaszcz, Plaintiff(s),

against

Western Loft Equities LLC and R/GA MEDIA GROUP, INC., Defendant(s).



101599/08



Attorneys for Plaintiff

Peter D. Rigelhaupt

THE PERECMAN FIRM, P.L.L.C.

250 West 57th Street, Suite 401

New York, New York 10 107

Attorneys for Defendant Western Loft Equities, LLC

MARGARET G. KLEIN & ASSOCIATES

200 Madison Avenue

New York, NY 10016

Attorneys for Defendant FUGA Media Group, Inc.

LAW OFFICE OF CHARLES J. SIEGEL

40 Wall Street, 7th Floor

New York, New York 10005

Marcy Friedman, J.

In this Labor Law action, plaintiff sues for injuries sustained when he allegedly fell off a scaffold while working at a construction site on June 28, 2007. Plaintiff moves for partial summary judgment as to liability against defendants Western Loft Equities LLC (Western) and R/GA Media Group, Inc. (R/GA) on his Labor Law § 240(1) claim. Western cross-moves for summary judgment dismissing plaintiff's complaint against it, and for summary judgment on its contractual and common law indemnification claims, and its failure to procure insurance claim [*2]against R/GA.[FN1] R/GA cross-moves for summary judgment dismissing plaintiff's Labor Law §§ 200 and 241(6) claims, and all cross-claims against it.

The following relevant facts are undisputed: Plaintiff was employed as a carpenter for non-party Jadran Interiors (Jadran). Western was the owner, and R/GA was the lessee of the premises where plaintiff's accident occurred. Jadran was hired by both Western and R/GA in connection with a build-out of R/GA's space. The parties dispute whether Jadran was performing work for Western or R/GA at the time of the accident.

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, 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 giveproper 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.) "The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." (Rocovich, 78 NY2d at 514.) " [A]n accident alone does not establish a Labor Law §240(1) violation or causation." (Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280, 289 [2003].) In order to establish liability under §240(1), it must be shown that the statute was violated and that the violation was a contributing cause of the plaintiff's fall. (Id. at 287-289.)

In moving for summary judgment, plaintiff submits his deposition testimony regarding [*3]the circumstances of the accident: At the time of the accident, he was working on the second floor, installing tracks and drywall. (See P.'s Dep. at 24, 28-29.) Prior to standing on the scaffold, he locked the wheels to the scaffold. (Id. at 35, 38.) At the time of the accident, he was standing on the top of the scaffold, approximately six feet off the ground. (Id. at 31.) When he squeezed the trigger of the hilti (nail) gun, the "scaffold tilted and [he] lost [his] balance and [he] fell on concrete on [his] feet." (Id. at 53.) The scaffold tipped backwards. (Id. at 58.)

Plaintiff further testified that there were no side rails or safety rails on the scaffold. (Id. at 39.) Plaintiff also submits the testimony of his employer, Jadran, whose president, Mario Nemaric, testified that his workers at the site were not given any other safety devices such as a harness or tie line. (See Nemaric Dep. at 28.)

Based on this evidence, plaintiff makes a prima facie showing that defendants violated § 240(1) and that the violation was a proximate cause of plaintiff's injuries. (See Crespo v Triad, Inc., 294 AD2d 145 [1st Dept 2002].)

In opposition, defendants argue that plaintiff was the sole proximate cause of his accident because he failed to lock the wheels of the scaffold. Defendants also argue that a triable issue of fact exists because he gave allegedly conflicting statements as to how the accident occurred.

Even assuming arguendo that plaintiff failed to lock the wheels to the scaffold, such failure is insufficient to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident, in light of the undisputed fact that the scaffold lacked side rails. (See Crespo, 294 AD2d at 147 [upholding summary judgment in favor of plaintiff on Labor Law § 240(1) cause of action where it was undisputed that scaffold lacked guardrails, notwithstanding that claims were made that plaintiff failed to lock the wheels]; Vanriel v A. Weissman Real Estate, 262 AD2d 56 [1st Dept 1999].)

Defendants' additional contention that plaintiff gave inconsistent versions of the accident is unavailing. Mr. Nemaric testified that plaintiff told him after the accident that "the scaffold went down under him and he went forward. And he jump off the scaffold and he got hurt." (Nemaric Dep. at 26.) This alleged admission that plaintiff jumped is not sufficient to raise a triable issue of act on plaintiff's § 240(1) claim. It is undisputed that the scaffold moved and tilted before the alleged jump. Therefore, it was not an adequate safety device to protect plaintiff while he was working at an elevation. Under similar circumstances the Appellate Division of this Department reversed the denial of summary judgment to a plaintiff on a § 240(1) claim where the scaffold lacked side rails. The court reasoned: "A lack of certainty as to exactly what preceded plaintiff's fall to the floor below does not create a material issue of fact here as to proximate cause. It does not matter whether plaintiff's fall was the result of the scaffold falling over, or its tipping, or was due to plaintiff misstepping off its side. In any of those circumstances, either defective or inadequate protective devices constituted a proximate cause of the accident." (Vergara v SS 133 West 21, LLC, 21 AD3d 279, 280 [1st Dept 2005]. See Klapa v O & Y Liberty Plaza Co., 218 AD2d 635 [1st Dept 1995]. Compare Montgomery v Federal Express Corp., 4 NY3d 805 [2005] [plaintiff jumped from elevation in lieu of using available safety device].) As defendants' violation of the statute was a proximate cause of the accident, plaintiff cannot be solely to blame for it. (Blake v Neighborhood Hous. Servs., 1 NY3d 280, 290 [2003].) Accordingly, the court should award plaintiff judgment as to liability against defendants Western and R/GA.

[*4]Labor Law § 241(6)

Labor Law §241(6) provides:

All contractors and owners and their agents . . . shall comply with the following requirements:

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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

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].) This duty is nondelegable, and a plaintiff need not show that the defendant exercised supervision or control over the worksite to recover under this section. (Id. at 502.) In order to maintain a viable claim under Labor Law §241(6), however, 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.)

In opposition to the branches of defendants' cross-motions seeking dismissal of plaintiff's claim under § 241(6), plaintiff alleges that defendants violated Industrial Code § 23-5.18(b). (12 NYCRR.) This section provides: "The platform of every manually-propelled mobile scaffold shall be provided with a safety railing constructed and installed in compliance with this Part (rule)." It is undisputed that the scaffold on which plaintiff was working was manually propelled and six feet high. (See Nemaric Dep. at 12.) Contrary to defendants' contention, this section is applicable regardless of the height of the scaffold. (See Vergara, 21 AD3d at 281.) As held above, defendants' failure to provide a scaffold with safety rails was a proximate cause of plaintiff's accident. Accordingly, the branches of defendants' motions seeking dismissal of this claim should be denied. Further, the court searches the record, and grants summary judgment as to liability to plaintiff on the § 241(6) claim.

Labor Law § 200 and Common Law Negligence

Labor Law §200(1) provides in pertinent part, as follows: All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.

Labor Law §200 is a codification of the common law duty imposed upon an owner or contractor to provide construction workers with a safe place to work. (See Comes v New York [*5]State Elec. and Gas Corp., 82 NY2d 876 [1993].) An implicit precondition to this duty "is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981].)

Thus, "[w]here 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 the owner under the common law or under Labor Law §200." (Comes, 82 NY2d at 877. See also Ross, 81 NY2d at 505 [same for general contractor]; Reilly v Newireen Assocs., 303 AD2d 214 [1st Dept 2003], lv denied 100 NY2d 508.)

The branch of defendants' motions seeking dismissal of plaintiff's claims under

§ 200 and for common law negligence should be granted. As it is undisputed that this case involves the safety of the scaffold that was provided by Jadran, this case arises out of the methods and manner of the subcontractor's work. (See Ortega v Puccia, 57 AD3d 54 [2d Dept 2008].) Plaintiff fails to submit evidence sufficient to raise a triable issue of fact in opposition to defendants' prima facie showing that defendants neither controlled nor supervised plaintiff's work. (See Dep. Of David Boehm [R/GA's Senior Vice President for Facilities] at 80.) The general supervisory authority of both Western and R/GA over Jadran is insufficient to demonstrate defendants' liability under this section. (See e.g. Brown v New York City Economic Dev. Corp., 234 AD2d 33 [1st Dept 1996]; Gonzalez v United Parcel Serv., 249 AD2d 210 [1st Dept 1998].) Accordingly, this claim should be dismissed.

In so holding, the court rejects plaintiff's claim that an issue of fact exists as to whether defendants had actual or constructive notice of the defective scaffold, and that their liability under § 200 may be premised on such notice. (See P.'s Aff. In Reply at 22.) "Mere notice of unsafe methods of performance is not enough to hold the owner or general contractor vicariously liable under this section." (Colon v Lehrer, McGovern & Bovis, Inc., 259 AD2d 417, 419 [1st Dept 1999].)

Indemnification

Western moves for summary judgment on its cross-claims against R/GA for contractual and common law indemnification and failure to procure insurance. R/GA opposes Western's cross-motion on the grounds that plaintiff was working for Western rather than R/GA when he fell off the scaffold.

Article 58 of the rider to the parties' lease provides in pertinent part that "Tenant [R/GA] hereby agrees to save Landlord harmless and indemnified from all injury, loss, claims or damage to any person or property on or about the demised premises or caused by actions of Tenant, its agents, servants and contractors which are negligent or in breach of the lease." (See Western Aff. In Reply, Ex. A.) Thus, the contract requires a showing of R/GA's or its contractor's negligence to trigger the indemnification provision.

On this record, the court holds that R/GA fails to raise a bona fide issue of fact as to whether plaintiff's employer, Jadran, was working under a contract with Western, rather than under a separate contract with R/GA, at the time of plaintiff's accident. It is undisputed that Jadran was hired to do drywall work on the second floor by both Western and R/GA, in connection with the build-out of R/GA's offices. (See Dep. of Charles Granick [Western's property manager] at 31-32.) David Boehm, R/GA's Senior Vice President for Facilities, [*6]testified that the drywall work that Jadran performed for Western was done in the mechanical room enclosures and in hallways where Jadran did demolition which required filling in of a doorway or connecting walls. (Boehm Dep. at 123-126.) He was specifically asked whether Jadran performed drywall work on behalf of Western in any of the areas near the freight elevators, and unequivocally stated that it did not. (Id. at 128.) It is undisputed that plaintiff's accident occurred "by the freight elevators." (Nemaric Dep. at 35; P.'s Dep. at 36.)

R/GA contends that there is a triable issue of fact as to whether plaintiff was performing Western's work, based on a schematic drawing which was attached to the lease between Western and R/GA. R/GA's counsel asserts that the schematics show doorways and connecting walls around the elevators, and that filling in these doorways or walls "would have been part of the landlord's scope of work." (Aff. of Stephanie Johnson, Esq. in Opp. to Western's Cross-Motion [Johnson Aff.], ¶ 21; Ex. A [schematics].) This assertion is based on sheer speculation. There is no evidence in the record that Jadran performed any demolition work for Western in the area of the freight elevators, leaving doorways or walls to be filled in there. Indeed, when Boehm was questioned about areas on the schematic where demolition was performed, leaving openings that had to be drywalled as part of Western's responsibility, he identified areas (Suites 201-203) that were not anywhere near the freight elevator. (Boehm Dep. at 126-128.) Significantly, moreover, R/GA's assertion is wholly inconsistent with Boehm's testimony, discussed above, that Jadran did not perform any work in or around the freight elevators.

R/GA also fails to raise a triable issue of fact based on its claim that Jadran "may not have been retained by R/GA" as of the date of plaintiff's accident. (Johnson Aff., ¶ 22.) R/GA bases this contention on the fact that the purchase order from R/GA to Jadran (Johnson Aff., Ex. B) is dated June 28, 2007, the same day as the accident. This assertion is also speculative and not supported by any testimony from Boehm. It is also contradicted by an invoice from Jadran to R/GA dated June 26, 2007 (Johnson Aff., Ex. C), and by plaintiff's employer's uncontradicted testimony that he began work for R/GA about two to four weeks before the accident. (See Nemaric Dep. at 17-18.)

The court has considered R/GA's remaining contentions and finds that R/GA fails to raise a triable issue of fact as to whether Jadran was working for Western on the date of the accident. Nevertheless, the court declines to grant summary judgment to Western on its contractual indemnification claim. As held above, the indemnification provision between Western and R/GA is triggered only upon a finding of either R/GA's or its contractor's negligence. However, Western has not addressed the issue of whether R/GA and its contractor, Jadran, were negligent and, in particular, whether they may be found negligent as a matter of law, based on the court's finding that Jadran failed to provide plaintiff with an adequate safety device in violation of the Labor Law. Similarly, Western's common law indemnification claim must be denied as Western has failed to demonstrate R/GA's negligence. (See Correia v Professional Data Mgt., 259 AD2d 60 [1st Dept 1999].)

As to the failure to procure insurance claim, while Western does not submit the lease provision requiring R/GA to obtain insurance on its behalf until its reply (see Aff. In Reply on Western's Cross-Motion Ex. A), R/GA does not dispute, in its opposition, that its lease provision with Western obligated it to name Western as an additional insured, and that it failed to obtain the requisite insurance. (See Johnson Aff. ¶¶ 41-45.) Accordingly, this branch of Western's [*7]motion should be granted to the extent of awarding Western judgment as to liability on its failure to procure insurance claim against R/GA.

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

ORDERED that plaintiff Stanislaw Chrabaszcz is awarded partial summary judgment as to liability against defendants Western Loft Equities LLC and R/GA Media Group, Inc. on his claims under Labor Law § 240(1) and under § 241(6) to the extent he relies upon violation of Industrial Code § 23-5.18(b); and it is further

ORDERED that the cross-motions of defendants Western Loft Equities LLC and R/GA Media Group, Inc. for summary judgment are granted only to the extent that it is

ORDERED that plaintiff's claims against defendants Western Loft Equities LLC and R/GA Media Group, Inc. under Labor Law § 200 and for common law negligence are dismissed; and it is further

ORDERED that Western Loft Equities LLC is awarded judgment as it liability on its failure to procure insurance claim against defendant R/GA Media Group, Inc., with an assessment of damages to be held at the time of trial.

This constitutes the decision and order of the court.

Dated:New York, New York

December 20, 2010

___________________________

Marcy Friedman, J.S.C. Footnotes

Footnote 1:Although Western's notice of motion seeks dismissal only as to plaintiff's Labor Law

§ 240(1) claim, the affirmation in support seeks the above stated relief.