Posa v Copiague Pub. School Dist.

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Posa v Copiague Pub. School Dist. 2010 NY Slip Op 33767(U) January 7, 2010 Sup Ct, Suffolk County Docket Number: 06-7683 Judge: Emily Pines Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEXNO. 06-7683 - SUPREME COURT - STATE OF NEW YORK I.A.S. PART 23 - SUFFOLK COUNTY EMILY PINES .lus~ice the Supreme Court of MOTION DATE 7-16-09 (#006) MOTION DATE 7-27-09 (#007 & #OO8) MOTION DATE 9-24-09 (#009) ADJ. DATE 10-29-09 Mot. Seq. # 006 - MotD Mot. Seq. # 007 - MotD Mot. Seq. # 008 - XMotD Mot. Seq. # 009 - XMD i 1 0 1 1 ___ ___ ii __.__ _ _ _ _ _ I _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - X ) I Ih 1 0s 4 and CAROLINE POSA, Plaintiffs, - against - GALL0 VITUCCI & KLAR Attorney for Copiague Public School District & Irwin Contracting of Long Island, Inc. 90 Broad Street, 31dFloor New York, New York 10004 1: PUl3LIC SCHOOL DISTRICT, t II. \ I , F H AND EDUCATION EQUIPMENT , ()i lA(il ORI . IRWIN CONTRACTING OF LONG isimri. INC. THE AMERISC CORP., TKO CASSISI & CASSISI, P.C. Attorney for Plaintiffs 114 Old Country Road Mineola, New York 1 150 1 : ANDREA G. SAWYERS, ESQ. Attorney for Health & Education Equipment Corp. 3 Huntington Quad., Suitl: 102S, P.O. Box 9028 Melville, New York 1 1747 c OVI RACTINC; CORP., and SCHOOL c O Y S TRI JC TION CONSULTANTS, INC., GREENFIELD & RUHL Attorney for TKO Contracting Corp. 626 RXR Plaza Uniondale, New York 11556 Third-party Plaintiff, - against i i 1 ti I I I ,ZND I3DUCATION EQUIPMENT ORI : GOGICK, BYNRE & O NEILL, LLP Attorney for School Construction Consultants Inc. 11 Broadway, Suite 1560 New York, New York 10004 THE AMERISC CORP. 777 Zeckendorf Boulevard Garden City, New York I 1 530 [* 2] on these motions for summary judgment, Notice of Motion/ Order 'iuw .ind \upporting papers 1 - 17, 18 - 28 , Notice of Cross Motion and supporting papcrs 29 - 46 , 47 - 53 , 54 - 59 , 60 - 61 ; 62 - 63 64 - 69 , 70 - 71 72 - 73 , F.eplying Affidavits and i \ \ c't it12 Iffid,i\ i t , and supporting papers iipporiiiig p ' i p u \ 2 - 75 , 7 6 - 77 , 78 - 80 , 8 I - 82 , 83 - 84 , Other memorandum of law 85 - 86 ,m 4 ()--rr+ It IS, I poi1 the lo lowing papers numbered 1 to &read \I ,)\\ c ~ . ORDERED that these motions are consolidated for the purpose of this determination; and it is lifl -le1 ORDERk:D that the motion (#006) by defendantkhird-party defendant Health and Educational I qi:ipnient C.orp for an order pursuant to CPLR 3212 granting summary judgment dismissing the -onipltiint and the third-party complaint, as well as any cross claims asserted against it, and for summary r i d p e n t on its cross claim over and against defendant TKO Contracting Corp. for common-law ,riric.nini~ication, granted to the extent that the plaintiffs Labor Law $8 240 (1) and 241 (6) claims are is ,Irmis\ed, and is otherwise denied; and it is further ORDERED that the motion (#007) by defendant TKO Contracting Corp. for am order pursuant to summary judgment dismissing the complaint, as well as any cross claims asserted ig,)insi it. IS granted to the extent that the plaintiffs Labor Law § § 240 (1) and 241 (6) claims are Jiwiissed. and is otherwise denied; and it is further 3 P! l i 7 2 12 granting ORDERZTD that the cross motion (#008) by defendantdthird-party plaintiffs Copiague Public \L*l~ool District and Irwin Contracting of Long Island, Inc. for an order pursuant to CF'LR 3212 granting ~ i i r i m i a ~iudgnient dismissing the complaint, as well as any cross claims asserted against them, and for ? siiritmarj judgment in their favor on their claims for contractual indemnification over and against dctcndants Health and Educational Equipment Corp. and School Construction Consultants, Inc., is ci m t e c l to the ex tent that the plaintiffs Labor Law $5 240 (1) and 241 (6) claims are dismissed and they JI'C en1 itled to contractual indemnification over and against Health and Educational Equipment Corp., c ~ ~ISi otherwise denied; and it is further c ORDERED that the cross motion (#009) by the plaintiffs for an order pursuant to CPLR 32 12 5 240 (1) is denied. cianting sunitnary judgment as to the defendants' liability pursuant to Labor Law 1 he injui ed plaintiff, John Posa, commenced this action to recover damages pursuant to Labor I 4 q 100, 34(3 ( I ) , and 241 (6) and for common-law negligence, for injuries he allegedly suffered ,I\\ licn tabletops being stored in a hallway fell over onto his foot. His wife sues derivatively. The i\ J c I t.milant ( ' o p i a q e Public School District (School District) contracted with several prime contractors to ccrtain alterations and additions to its schools. It appears that defendant Irwin Contracting of Long I4lmcl lnc ( Irwin) was the prime construction contractor, and that its contract included renovation of i ~ i i w c labs Invin subcontracted the cabinets, tables, and tabletops for the science labs to defendant : 1 Ic,iltli anti 1:ducation Equipment Corp. (H & E). H & E, in turn, sub-subcontracted 1he installation of i ticst' iiutures to I'KO Contracting Corp. (TKO). Defendant School Construction Consultants, Inc. i\( miis d prime contractor hired to act as the construction manager. iii'ii\c. (''8 [* 3] c~pique I rtblic School Dist. \ ( i dc \ lt i!.!( bo Oh-768 3 \\I I plaintiff testified at his deposition that he was employed by a nonparty and that, on the day ! i l s,iccident. tic was installing partitions in a third-floor bathroom. Other contractors, including L4cciricim\ m d c&irpenters, were also working at the site on the day of his accident. He was utilizing an \ t i m i c cart to c;irry his tools and materials and he testified that, as he exited the elevator to third floor, IC pushed the cart in front of him. When he was approximately three feet into the hall, tabletops which ~LILI hecn leaning against the wall in the hallway fell over onto his foot, inflicting the injuries alleged ~ i t . ~ r v i n 1 he tabletops were epoxy resin and weighed 180 pounds each. The plaintiff did not see the ,il~lc~tops before they fell over. tic -1 l2,ibor t,a\v $ 240 (l), commonly known as the scaffold law, creates a duty that is nondelegable m i an om ner or general contractor who breaches that duty may be held liable in damages regardless of \i hethr:i either actually exercised supervision or control over the work (see,Ross v Curtis-Palmer IfJdro-Elec. Co. 8 1 NY2d 494, 60 1 NYS2d 49 [ 19931). The exceptional protection provided for t~oi kcrs by 240 (1) is aimed at special hazards and is limited to such specific gravity-related iccldents as falling from a height or being struck by a falling object that was improperly hoisted or iwdequately secured (Ross v Curtis-Palmer Hydro-Elec. Co., supra at 501 ;Rocovicib v Consolidated Ediyon (lo.. 78 NY2d 509, 5 14, 577 NYS2d 2 19 [ 199 11; Zimmer v Chemung Counly Petforming Arts, 1 7 YY2d 5 13. 403 NYS2d 102 [1985]). However, the special hazards contemplated by 6 240 (1) do nt)\ encompass any and all perils that may be connected in some tangential way with the effects of g r a ~ * i \cL ,Ross v Curtis-Palmer Hydro-Electric Co., supra; Rodriguez v Margaret Tietz Ctr.for it! l ursing Care, 84 NY2d 841, 616 NYS2d 900 [1994]) and not every object that falls on a worker gives i 1st t o the extraordinary protections of Labor Law tj 240 (I) (Narducci v Manhasset Bay Assoc., 96 \ J 2d 259. 267. 727 NYS2d 2d 37 [2001]). In order to prevail upon a claim pursuant to Labor Law 5 - A1 ( I ). plaintiff must establish that the statute was violated and that this violation was a proximate ol his injuries (Bland v Manocherian, 66 NY2d 452,497 NYS2d 880 [1985]; Sprague v Pwkltam Materials Corp., 240 AD2d 392, 658 NYS2d 97 [1997]). s In :lctlons premised on falling objects, an essential component of an injured worker s ability to I C C . ) ~ I S that he must show that the object fell, while being hoisted or secured, because of the absence cr , n d c q u a c y ol a safety device of the kind enumerated in the statute (Narducci v Manhasset Bay h s o c . . . ~ i i p ~ulso, Roberts v GeneralElec. Co., 97 NY2d 737, 742 NYS2d 188 [2002]). Here, the i: t,ihletvps v,liich fell over were neither in the process of being hoisted nor a load that required securing by , H I ivtrnicrated device (Narducci v Manltasset Bay Assoc., supra at 268; Misseritti v Mark IV Constr., Sh V\1 3_d 387,490-491,634 NYS2d 35 [1995]; Mikcova v Alps Meclz., 34 AD3d 769,82 NYS2d 130 3(106 F urthev-, the tabletops were at the same level as the plaintiff and therefore were not falling 1 , ~ b \ ~ c I ~ purposes of the absolute liability imposed by Labor Law tj 240 (1) (compare, Outar v Ct iiu the iy 01 V w I ork. 5 NY3d 73 1, 799 NYS2d 770 [2005] [where the object, although not being hoisted, was at i higher level than the plaintiffs work]; see also, Desharnais v Jefferson Concrete Co., 35 AD3d 1059, S? NYC3d 3 12 [2006]; Peay v New York City Scltool Constr. Autli., 35 AD3d 566, 568,827 NYS2d I 3c) 1200OJ;iv denied 8 NY2d 807, 833 NYS2d 426 [2007]; Mikcova v Alps Meclz., supra; Zirkel v Frontier Communications of Am., 29 AD3d 1188, 815 NYS2d 324 [2006]; Atkinsm v State of New Ior/t. 20 4113d 739,740, 789 NYS2d 230 [2005]). Accordingly, Labor Law 6 240 (1) is inapplicable to r l i c plaii~tifl s accident, summary judgment dismissing this claim is granted to the defendants, and the ;)/,iiniiJTsmotion for summary judgment in his favor on this claim is correspondingly denied. [* 4] I ( , e4tablish liability under L,abor Law 5 241 (6), a plaintiff must plead and prove the violation of kp.xitic Industrial Code regulation that is applicable to the circumstances of his accident (see, Ross v f 'rtrti\-Pcrlnzer Wvdro-Electric Co., supra). Here, the plaintiffs complaint and bill of particulars are oid ,,i'an> refcrence to a specific regulation. The failure to identify a violation of any specific i ~ i ision oI the lndustrial Code precludes liability under Labor Law 5 241 (6) (Owen v Commercial o ~ Vitrs, 384 : l I X c l i15, 725 NYS2d 574 [2001]). Accordingly, summary judgment disniissing the ~ ~ l t ~ I i ~ I l,ibor I,aw tj 241 (6) claim is granted to the defendants. t f'i~s to the xmaining claims, Tom DiBenedetto, the owner of TKO, testified at his deposition that \iorkers off-loaded the tabletops when they were delivered to the site, that he asked the general o!ilr;ictor ( Irwin I where to store them and was told to consult the School District's custodian, that the u4todian told him to place them in the hallway near the elevator because the floors in the classrooms x crc b a n g reiinished, and that it was his own decision to lean them upright. This decision was based lipon the fact that the tabletops were to be installed in just a few weeks and the space in the hallway was iinited If the date for installation was further off, the tabletops would have been stored flat because he\ could warp. Moving them from a flat position was more difficult because of their weight, and ning them upright made them easier to handle. DiBenedetto also testified that he complained to the I*-. utet> manager" or "safety inspector" at the site that the storage areas were located too far from where lw material mas to be installed. He recalled that this safety person checked to make sure that TKO had l~ioper hard hats and shoes and took the personnel count, although he did not recall his name or for \ \ hi jni he \$orkecl. He testified that it was this safety person who directed him to the cxstodian. IefiYey Engelhardt, the School District's head custodian testified at his deposition that he recalled >i~ei~ig smaller tabletops leaning against the wall by the third-floor elevator, but not the large ones that plaintifi'alleges fell on him, and that he made no complaints about them to SCC. He did not direct \ \ ticre the contractors would store their supplies and, if a contractor had sought such direction, he would I K I \ e referred them to SCC. The floors were not refinished until after all construction had been Iripleted. IIW L ( \ ic~oiNmjokas, SCC's construction project manager, testified at his deposition that he was at the site daily but did not direct how or where construction material was stored. Although he I I X contact u it11 Mr. Engelhardt, Mr. Engelhardt did not direct or control where materials were stored, u x h contractor was responsible for its own material. He was unaware o f a specific person responsible to? s'ilety a t the 4te, he had no authority to stop or redirect work he felt was unsafe, and he did not see I lic thletops until they were installed on the tables. He testified that he observed floors being refinished Jill m y the project ilic'xmt .lohii 1 Invin. the owner of Irwin, testified at his deposition that he subcontracted the lab fixtures to 1 ,i: t . t h d he never discussed or controlled where or how to store the tabletops with H & E, and that he t i n w a r e that H & E had sub-subcontracted their installation to TKO. The first time he saw the 'Lil-ictcyx. they were already installed on the tables. S t c i en hlyers, H & E's vice president, testified at his deposition that H & E iiLtallation orthe lab fixtures to TKO, and that TKO off-loaded the tabletops at the subcontracted the site, stored them at [* 5] ~ n installed them. TKO s work was supervised at the site by H & E s project manager, Frank d Xo\>i ! 1 R: F did not supervise how TKO was to do its work and was not present at the site on the day [hi. pla~ntiff~s accident. illL .itc 1 abor I ,aw tj 200 codifies the common-law duty of an owner or employer to provide employees placc I O work (Jock v Fien, 80 NY2d 965, 590 NYS2d 878 [1992]; Mordkofsky v KC.K i i i ~ ; safe I Cbrp.. 76 NY2d 573, 561 NYS2d 892 [1990]). It applies to owners, contractors, or their agents Kirwin Louis N. Picciano & Son, supra) who exercise control or supervision over i.he work, or either rtxjled the dangerous condition or had actual or constructive notice of it (Lombardi v Stout, 80 NY2d 00 590 Ul S2d 5 5 [1992]; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709,713 NYS2d 190 OOO] I \ here the plaintiff alleges that a proximate cause of his injuries can be attributed to an (11 icpedly dangerous condition at the work site, a defendant may be liable under Labor Law 4 200 and for i oninion-la~~ negligence if it had control over the place where the injury occurred and had actual or oiistructive notice of the dangerous condition (Nasuro v PIAssoc., supra; Payne v 100 Motor Parkway lssoc.. 45 AD3d 550, 846 NYS2d 21 1 [2007]; Gadani v Dormitory Auth. of State ojN.Y., 43 AD3d 2 1 ri. 84 1 NYS2cl 709 [2007]). Further, a subcontractor may be held liable for negligence where its L o r k created the condition that caused the plaintiffs injury, even if it did not possess any authority to kiiprrvisc and control the plaintiffs work or work area (see, Tabickman v Batchelder St. Condominiunzs By the Bay, 52 AD3d 593, 859 NYS2d 721 [2008]; Kelarakos v Massapequa Water Dist,, 38 AD3d 717, 832 NYS2d 625 [2007]; Mendez v Union Theol. Seminary in City ofN.Y., 17 1 ) ;d 27 1, 793 hYS2d 420 [2005]). While the plaintiff must establish at trial that the defendant created 1 01 I ~ i d t u a l or Constructive notice of the alleged dangerous condition and that this was a proximate x ause of his accident (see, Wove v KLR Meclz., 35 AD3d 916, 918, 826 NYS2d 458 [2006]; Jurgens v C ltifefme Resort on Lake Placid, 293 AD2d 924,742 NYS2d 142 [2002]; Johnson v Packaging 1 Gorp. q f A m . 274 AD2d 627, 629, 710 NYS2d 699 [2000]), for the purpose of the defendants motions l ( l r <urnmar> judgment dismissing the Labor Law 5 200 and negligence claims, each defendant had the n i t i L i 1 burden to establish,prima facie, that it did not create nor have actual or constructive notice of the ,111cpeddangerous condition (see, Wove v KLR Mech., supra at 919; Bell v Bengonzo Realty, 36 AD3d 470 829 YYS2d 42 [2007]; Bonse v Katrine Apt. Assoc., 28 AD3d 990, 991, 813 NYS2d 578 [2006]). I icrc. the deposition transcripts directly contradict one another as to who had control or notice of the :~lx merit c > l ~ tabletops in the hallway. Accordingly, summary judgment dismissing the plaintiffs Labor JM 3 2 0 0 and common-law negligence claims is denied to all defendants. &v. i $1 t I f I he School District and Irwin also seek summary judgment on their claim for contractual nji.ini?ification over and against H & E. It is well settled that the right to contractual indemnification iicpL*rid\upon the specific language of the contract (Bellefleur v Newark Beth Israel 1Md. Ctr., 66 AD3d S ( 1 - 888 VYS2d 8 1 [2009]; Moss v McDonald s Corp., 34 AD3d 656, 825 NYS2d 497 [2006]; Kader v f i t ) of II: Y. Hoirs. Preserv. & Dev., 16 AD3d 461,463, 791 NYS2d 634 [2005]; GilJmore v l)rrhdF/cror Dnniel, 221 AD2d 938, 939, 634 NYS2d 588 119951). Here, the contraci between Irwin inJ I i r(( 1. provicxs, in relevant part, at section 4.6, that H & E would indemnify and hold the owner and otilracmr ( Irmin) harmless against any claims, damages, losses and expenses by reascn of any liability < I I i\ing out o f or resulting from the performance of its work, but only to the extent caused by the rcgi igent acts or omissions of the Subcontractor, the Sub-Contractor s Sub-subcontractors, * * * 1 i.gc~rdlccx bhether such claim is caused in part by a party indemnified hereunder. of [* 6] Yl h11e the School District and trwin could not be indemnified if they were found to be solely at it111((miera1 Obligations Law 5 5-322.1 [I]; Brooks v Judlau Contr., 1 1 NY3d 204, 869 NYS2d 366 - t tS 1. ltri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 658 NYS12d 903 [ 1997]), lheie I S no dispute that it was the decision of H & E s sub-subcontractor, TKO, to store the .rt-.ic*op\ by ieaning them against the wall. Therefore, regardless of whether it is established at trial that ! / i t Sc~hocil District or Irwin had some control of the placement of the tabletops in the hall, they cannot be ~ L ~ ut n c ~ solely ,it fault. Since the contract contemplates indemnification even where the owner and o be t n i r x t o r ,ire found to be partially at fault, and TKO s actions caused or contributed to the happening of tiL* cldmt. the request by the School District and Irwin for summary judgment on their claim for .I( ~iiirc!ctud indemnification over and against H & E is granted. l 1 :IC remaining relief sought by the School District and Irwin is summary judgment on their claim Lx>iitrcictual indemnification over and against SCC. The contract between the School District and -?( c pro\ ides. in relevant part, at article 9, section 4, that SCC would indemnify and ho Id harmless the n ~ i c and its consultants and agents and employees from and against all claims arising out of or i i;sult~ng from any omission, fault, or neglect on its part, but excluding those arising from the Owner s 1 1 negligence. SCC argues that its contract with the School District also provides, at article 7, ~ c i i o i8. that it ?shall not have control over or charge of the work and shall not be responsible for i Iistruction means. methods, techniques . . . or for safety precautions and programs in connection with iic \L orl\ of each of the Prime Contractors or Trade Contractors, since these are solely the Contractor s . I ~ I L I r,lde Contractor s responsibility. Section 8 also states that SCC shall not have control over or . ~arge acts or oinissions of the Prime Contractors, Trade Contractors, subcontractors, or their agents of 1 employees . . . not directly employed by it. Therefore, SCC argues that it had no responsibility for \ ILW 11owthe sub-subcontractor stored its material and has no duty to indemnify. ti 1-1 gt o s s 1 p ) r 1 tic. School tlistrict and Irwin argue that the contract also provides at article 2, section 4 (c), ~ ~ c c : t i o n that SC C shall arrange . . . or secure services necessary for the delivery and storage, 8. 11 o1cction and security for . . . materials, systems and equipment which are part of the Project, and at ~ . l t .2. scction 4 (d), subsection 9, that SCC shall enforce the requirement that all Contractors i i i i t c i i i i 111 a n unobstructed condition all entrances and/or exits from present buildings and that in the , , ~ 1 1 iai (1 contractor fails to maintain such unobstructed condition, SCC shall immediately notify tI .-iiL Loiitrxtor or arrange for removal of the obstruction. Therefore, while it is clear the SCC had no 1. ~ ~ i t r ~ )l f t I i e o niethocis or means employed by the various contractors to perform their work, there is, at ~r~liitnum. J question as to whether SCC had an ability and a duty as to the storage of materials at the it i d as to notifying a contractor or arranging for maintenance of unobstructed passage:;. oidingli. wnimaiy judgment on this claim is denied to the School District and Irwin. 1-1 l ii 141 LS~I! 1 I & I , seeks summary judgment on its claim for common-law indemnification over and KO I lowe\ er, an award of summary judgment on a claim for common-law indemnification is on1) u he1 e there are no triable issues of fact concerning the degree of fault attributable to the AD3d - , 2009 NY Slip Op 8193,[2009]; Tama v Gargiulo i-111 tir . i > L J C J . Mmdelslrolzn v Goodnzan, R r r t ~ 6 .2113d 958, 878 NYS2d 128 [2?%9]; Kwang Ho Kim v D & WSIzin Realty Corp., 47 AD3d f h 7 0 8 5 2 NYS2d 138 [2008]; Coque v Wildflower Estates Devs., 31 AD3d 484, 818 IVYS2d 546 .(I H\j i Ilere. f l & E did not establish as a matter of law that its project manager lacked authority over, I 1 1 i i ~ iLite i [* 7] , 1 I O I I C ~ Loi. the alleged storage hazard. Accordingly, summary judgment on this claim is denied. I he plaintiff s Labor Law - ~ l ~ ~ c i ~ 1 cinims shall continue. 1 1 l 1 ~ I h r d January 7, 2010 I i\erhead. New York i $5 240 (1) and 241 (6) claims, dismissed herein, are severed and the

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