Fernandez v City of New York

[*1] Fernandez v City of New York 2011 NY Slip Op 50539(U) Decided on April 8, 2011 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2011
Supreme Court, Queens County

Manuel Fernandez and Rosa Fernandez, Plaintiffs,

against

The City of New York, Defendant.



21228/2006

 

For the Plaintiffs: Queller, Fisher, Washor, Fuchs & Kool, LLP, by Jonny Kool and Natalia Derin, Esqs., 233 Broadway, New York, New York 10279

For the Defendant and Third-Party Plaintiff City of New York: Malpero & Prisco, LLP, by Frank J. Lombardo, Esq., 295 Madison Ave., New York, NY 10017

For the Third-Party Defendant Environmental Energy Associates, Inc.: Rubin Fiorella & Friedman, LLP, by Stewart B. Greenspan, Esq., 295 Madison Ave., New York, NY 10017

For the Second Third-Party Tams/Earth and Allied North America/Joint

Venture: Fabiani Cohen & Hall, LLP, by Steven R. Dyki and Scott L. Glazer, Esqs., 570 Lexington Ave., New York, NY 10022

For the Third Third-Party Defendant A.F.C. Enterprises, Inc.: Law Office of Andrea G. Sawyers, by Michael T. Reilly, Esq., 3 Huntington Quadrangle, Melville, New York 11747

Charles J. Markey, J.

This is an action to recover money damages for personal injuries allegedly suffered as a result of a construction site accident that occurred on March 7, 2006. The plaintiff, a laborer for third third-party defendant A.F.C. Enterprises ("AFC") was performing demolition construction at the Bowery Bay Water Pollution Control Plant, located in Astoria, in Queens County, New York. The defendant The City of New York ("the City") was the owner of the plant and had entered into a contract with AFC, under which AFC was a prime contractor of the construction and renovation of certain structures at the Bower Bay Plant. The plaintiff had been employed at the plant location for about three months before the accident took place.

AFC entered into a contract with third-party defendant Environmental Energy Associates ("EEA"), whereby EEA was to provide safety services to AFC at the subject project at all times while AFC's workers were performing work at the project. EEA developed a Site Safety Health and Safety Plan. Under the contract, EEA agreed to defend and indemnify AFC and the City and save them harmless from any and all claims, suits, liability, expenses or damages, and/or injuries to persons.

Second third-party defendant Tams/Earth Tech Inc. and Allied North America/Joint Venture ("Tams Allied") entered into an agreement with the New York City Department of Environmental Protection ("DEP") to provide occupational safety auditing services at various projects including the subject property.

The plaintiff laborer testified, at an examination before trial, that, on the day of the accident, subsequent to removing old pipes from the upper floor of the "Grit/Thickener Building," the plaintiff was requested by a co-worker to assist in the dismantling of a metal roll up garage door and assembly. The assembly was located approximately 11.5 feet off the ground. To perform this task, the plaintiff was standing on a metal scaffold which had been supplied by his employer, while his co-worker was standing on a ladder on the other side of the garage door. The scaffold was between six and eight feet tall, eight to ten feet wide, and about five feet in depth. The scaffold was one level and had a wooden plank on top. The scaffold did not have any railings or a safety bar.

As the plaintiff was removing a fastener for the roll-up mechanism, the mechanism sprung forward and struck him in the head. He then was knocked unconscious and fell backwards off the scaffold to the floor below. The plaintiff testified that he received all his instructions from either his foreman or the superintendent of AFC.

A co-worker of the plaintiff, Joaquim Brito, an employee of AFC, testified at an examination before trial. He testified that, after he checked in at the project on the day of the accident, his foreman instructed him to install the scaffold in order to remove the garage door. He and other AFC laborers then erected the scaffold next to the garage door. The foreman was present when the scaffold was erected and was placed in its location under the foreman's supervision. He testified that there were railings for the scaffolds at the site, but none were used when the subject scaffold was erected. He further testified that he witnessed the accident and [*2]saw the plaintiff get struck by the metal plate of the assembly of the garage door and then fall backwards off the scaffold. He testified that, as a result of the impact from the plate assembly, the plaintiff was thrown off the scaffold.

The superintendent for AFC, John Callejas, also testified at an examination before trial. He testified that the subject scaffold was owned by AFC and erected by AFC employees. He testified that it was the foreman's decision not to install safety railings on the scaffold, and it was also his decision not to furnish safety harnesses and lanyards. He also testified that a representative from EEA was at the site every day, and an EEA employee was supposed to walk the site each day to make sure that AFC's work was done in compliance with all safety regulations. The safety representative from EEA had the authority to stop work done by AFC employees if an unsafe condition existed. He further testified that field inspectors were supposed to inspect AFC's work, and, if field inspectors saw unsafe work conditions, they were required to tell a foreman from AFC or its workers. He did not know what involvement Tams Allied had at the project.

Joseph Veksenfeld, the resident engineer of the City, testified at an examination before trial. He testified that his duties included overseeing a staff of inspectors who reviewed the work of contractors to make sure it complied with the contracts. These inspectors were employees of the City. He testified that each contractor had its own health and safety plan for the project. He stated that defendant EEA had prepared the health and safety plan for AFC, and the safety representative for AFC was an employee of EEA and that EEA was delegated the responsibility for the safety of AFC's work. He testified that Tams Allied had a contract with the City to provide safety consulting. Tams Allied was not on the job site daily, but was there once or twice a week. Tams Allied would send a report to him of unsafe work observations. He further stated that Tams Allied did not have the authority to control the means and methods employed by AFC's employees and did not have the authority to stop an AFC employee from working at the site.

Charles Drew, an area safety manager for Tams Allied, testified at an examination before trial. He testified that Tams Allied had a safety inspector assigned to the project. The safety inspector was responsible for auditing the contractor's health and safety plans to ensure compliance. At the project, the Tams Allied safety inspector would observe work while accompanied by AFC's safety representative. If Tams Allied's inspector saw an unsafe condition, he would ask AFC's safety representative to address the issue. Tams Allied's inspector would not address the means and methods of work. He further testified that AFC had a safety representative who was on the work site full time and that the primary safety inspectors were provided by EEA.

The field inspector for Tams Allied at the subject project in February and March 2006, James Brennan, submitted an affidavit in support of Tam Allied's cross motion for summary judgment. Mr. Brennan stated that his job duties consisted of performing periodic field safety inspections, recording the results on the inspections in a computer and occasionally reporting the [*3]results to Joseph Veksenfeld, the resident engineer for the City. Mr. Brennan stated that he never directed the means and methods of the work performed by any contractor at the project. His duties did not include the power to direct or control to work of any contractor or to direct the use of safety equipment. His job was to audit for any unsafe work practices and conditions. The only time he could potentially stop work was if an imminent danger or life-threatening situation was observed.

The vice-president of EEA, Mark Waznys, testified at an examination before trial. He testified that EEA was responsible for supervising the safety of AFC's workers and directing AFC to comply and instructing AFC employees on safe work practices. EEA's safety professional and safety representative both had the authority to instruct and direct AFC employees to comply with the health and safety plan.

Plaintiffs move, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law sections 240(1) and 241(6). The City cross moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and on its third-party claims for common law and contractual indemnification against third-party defendant EEA and on its second third-party claims for common law and contractual indemnification against Tams Allied.

AFC cross moves, pursuant to CPLR 3212, for summary judgment dismissing the third third-party complaint on the ground that the plaintiff Manuel Fernandez did not sustain a "grave injury," pursuant to New York State Workers' Compensation Law section 11, and dismissing any and all cross-claims and counter-claims and for summary judgment on its common law and contractual indemnification claims against the third-party defendant/third third-party plaintiff EEA and second third-party defendant Tams Allied. The defendant the City, pursuant to 22 NYCRR section 202.21(e), moves to vacate the plaintiffs' Note of Issue and Certificate of Readiness and striking the action from the Court's trial calendar upon the grounds that discovery has not yet been completed or, in the alternative, pursuant CPLR 3124, compelling all parties to respond to all outstanding items of discovery, or, in the alternative, pursuant to CPLR 3212(a), extending the defendant's time to file a motion for summary judgment.

The third third-party defendant AFC, similarly, cross moves to vacate the Note of Issue, striking this action from the trial calendar as discovery has not yet been completed, or, in the alternative, pursuant CPLR 3124, compelling all parties to respond to all outstanding items of discovery, or, in the alternative, pursuant to CPLR 3212(a), extending the third third-party defendant's time to file a motion for summary judgment.

Second third-party defendant Tams Allied moves for summary judgment, pursuant to CPLR 3212, dismissing the second third-party complaint and all cross-claims.

Upon the foregoing papers, on a motion for summary judgment, the movant must offer sufficient evidence to establish its prima facie entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Owners and contractors are [*4]subject to strict liability under Labor Law section 240(1). To prevail under such a claim, a plaintiff must provide evidence that the statute was violated and that the violation was the proximate cause of the injury (see, Blake v Neighborhood Hous. Servs. of New York City, 1 NY3d 280 [2003]).

Here, the plaintiff laborer's injuries were caused by a fall from a height while performing a protected activity under Labor Law section 240(1) (see, Ford v HRH Constr., 41 AD3d 639 [2nd Dept. 2007]). The plaintiff laborer made a prima facie showing of entitlement to summary judgment by showing that the scaffold he was working from did not provide him with proper protection for the task he was doing. In opposition, the defendant and third-party defendants failed to raise a triable issue of fact. The defendant and third-party defendants have not raised an issue of fact as to whether the plaintiff's actions were the sole proximate cause of the accident (see, Rudnik v Brogor Realty Corp., 45 AD3d 828 [2nd Dept. 2007]). The fact that there were safety railings for the scaffolding, harnesses, and other safety equipment on site is insufficient to prove that the plaintiff's action in standing on the scaffold without a railing or safety harness was the sole proximate cause of the accident.

Inasmuch as there is no evidence that the plaintiff received instructions to use the safety railing or harnesses to complete his work, the evidence does not establish that the plaintiff failed to follow instructions to use other safety equipment that the defendant and third-party defendants, now with the benefit of hindsight, claim he should have used along with the scaffold (see, Balzer v City of New York, 61 AD3d 796 [2nd Dept. 2009]). In fact, not only was the manner in which the plaintiff performed his work consistent with his supervisor's instructions, but the plaintiff did the work with the tacit approval of his supervisor (see, Rico-Castro v Do & Co New York Catering, 60 AD3d 749 [2nd Dept. 2009]; Pichardo v Aurora Contrs., 29 AD3d 879 [2nd Dept. 2006]). Furthermore, it is not relevant precisely how the plaintiff laborer fell from the scaffold, as the defendant's failure to provide proper safety devices, such as a railing and safety harness that would have prevented him from being knocked off the scaffold, is a proximate cause of the accident (see, Triola v City of New York, , 62 AD3d 984, 986 [2nd Dept. 2009]; Vergara v SS 133 West 21, LLC, 21 AD3d 279[1st Dept. 2005]).

Under Labor Law section 241(6), liability is imposed on an owner or contractor for failing to comply with the Industrial Code, even if the contractor did not supervise or control the work site, if such a violation was the proximate cause of the accident. The plaintiff alleges that the Labor Law section 241(6) cause of action is predicated on a violation of 12 NYCRR section 23-5.3(e), which requires safety railings for metal scaffolds. This is a specific provision that supports a violation of Labor Law section 241(6). Furthermore, the plaintiffs established that a violation of this provision was the proximate cause of the plaintiff laborer's injuries. The plaintiffs have, thus, met their prima facie burden of entitlement to summary judgment (see, Blair v Cristani, 296 AD2d 471 [2nd Dept. 2002]). In opposition, the defendant failed to raise an issue of fact as to its liability under Labor Law section 241(6).

In light of the discussion above granting summary judgment to the plaintiff on the issue [*5]of liability under Labor Law sections 240(1) and 241(6), the branch of the cross motion by the defendant City for summary judgment dismissing the Labor Law sections 240(1) and 241(6) causes of action are denied.

The motion by Tams Allied for summary judgment dismissing the third-party complaint and any cross claims is granted. The claims for common law indemnification and contribution against Tams Allied are based on the alleged negligence of Tams Allied. Summary judgment on a claim for common-law indemnification is only appropriate where there are no triable issues of fact as to the degree of fault attributable to each party involved (see, Tama v Gargiulo Bros., 61 AD3d 958 [2nd Dept. 2009]; Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616 [2nd Dept. 2008]).

Here, Tams Allied has established that it was free from fault for the subject accident. Tams Allied was not the owner or general contractor of the construction project. Contrary to the argument put forth by the City, EEA, and AFC, Tams Allied did not control the method or manner of the plaintiff laborer's work and did not have the authority to control or supervise the plaintiff laborer. Although Tams Allied's field inspector said he would stop work if a life threatening situation existed, there was no contractual obligation to halt the work, and Tams Allied had no authority to enforce the safety plans and to control the work of the contractors at the project.

Tams Allied, furthermore, did not have any actual or constructive notice of the dangerous condition. Additionally, no party is entitled to contractual indemnification from Tams Allied. The indemnification clause of the contract between the DEP and Tams Allied required Tams Allied to indemnify the DEP only in instances of the "negligence, carelessness or other act"of Tams Allied or its employees. As discussed above, Tams Allied has established that it was not negligent and none of its acts caused the subject accident.

In light of the discussion above, wherein the Court grants summary judgment to the second third-party defendant Tams Allied, the branch of the cross motion by the defendant City for summary judgment on its second third-party complaint for common law or contractual indemnification against Tams Allied is denied.

The City also moves for summary judgment dismissing the Labor Law section 200 and common law negligence causes of action. For an owner or general contractor to be liable under Labor Law section 200 or common-law negligence, the plaintiff must show that the owner or general contractor supervised or controlled the work, or had actual or constructive notice of the unsafe condition causing the accident (see, Lopez v Port Auth. of New York & New Jersey, 28 AD3d 430 [2nd Dept. 2006]; Parisi v Loewen Dev. of Wappingers Falls, LP, 5 AD3d 648 [2nd Dept. 2004]). Here, the City did not establish that it did not have actual or constructive notice of the alleged defective condition (Harsch v City of New York, 78 AD3d 781 [2nd Dept. 2010]; Navarro v City of New York, 75 AD3d 590 [2nd Dept. 2010]). [*6]

The City, furthermore, did not establish that it did not have the authority to control the work of the plaintiff laborer. In light of the fact that the City failed to establish that it was free from negligence, the branch of its cross motion for summary judgment on its claim for contractual and common law indemnification against the defendant EEA must be denied (see, Daniels v Bohn/fiore, Inc., 300 AD2d 341 [2nd Dept. 2002])

The Court next turns to the cross motion for summary judgment by the third third-party defendant AFC. Workers' Compensation Law section 11 bars common law claims against an employer, as well as third party claims for contribution or indemnity, except those based on a written contract, unless the employee suffered a grave injury (see, Tonking v Port Authority of New York & New Jersey, 3 NY3d 486, 490 [2004]; Konior v Zucker, 299 AD2d 320, 321 [2nd Dept. 2002]).

Under Rubeis v Aqua Club (3 NY3d 408 [2004]), a plaintiff suffering a traumatic brain injury suffers a "grave injury" if he or she is rendered incapable of employment in any capacity. In support of its cross motion, AFC submitted the affidavit of Sonia Mocarski, a vocational rehabilitation specialist, who opined, to a reasonable degree of certainty, that the plaintiff is employable at the exertional level for sedentary work to the low level of light work and that, at the light level, he would be limited to jobs that do not require lifting above 10 pounds infrequently. Ms. Mocarski opined that the plaintiff was suited for jobs that were unskilled, involved low stress, and required simple instructions. AFC has met its burden in establishing that the plaintiff did not suffer a grave injury. In opposition to the motion, second third-party defendant/third third-party plaintiff EEA submitted the affirmed neurological report of Aric Hausknecht, M.D., the plaintiff laborer's treating neurologist. Dr. Hausknecht opined, to a reasonable degree of certainty, that the plaintiff was permanently totally disabled from all forms of gainful employment. In light of the conflicting reports submitted, there is an issue of fact, as to whether the plaintiff suffered a grave injury (see, Sexton v Cincinnati, 2 AD3d 1408 [4th Dept. 2003]). Therefore, the branch of AFC's cross motion for summary judgment dismissing the third third-party complaint is denied.

As to the branch of the cross motion by AFC for summary judgment on its claims for contractual and common law indemnification, inasmuch as AFC did not establish that it was not negligent, it cannot be found as a matter of law that it is entitled to indemnification (see Tarpey v Kolanu Partners, LLC, 68 AD3d 1097 [ [2nd Dept. 2009]; Daniels, 300 AD2d 341, 342, supra). Therefore, that branch of the cross motion is denied.

Finally, the Court turns to the motion and cross motion to vacate the note of issue. The motion and cross motion are denied. A court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect and that all discovery proceedings have not been completed (see, Ferreira v Village of Kings Point, 56 AD3d 718 [2nd Dept. 2008]; Brown v Astoria Fed. Sav., 51 AD3d 961 [2nd Dept.], lv. to appeal denied, 11 NY3d 703 [2008]; Gregory v Ford Motor Credit Co., 298 AD2d 496 [2nd Dept. 2002]).

Pursuant to a so ordered stipulation, the plaintiffs were ordered to complete certain [*7]discovery and were permitted to file a note of issue on or before June 1, 2010. The plaintiff laborer appeared at a further deposition as required. The plaintiff laborer made himself available and, after multiple rescheduling, was examined by an orthopedist designated by AFC, Dr. Laurenece Mermelstein, on June 17. 2010. Additionally, the plaintiffs have produced duly executed authorizations to obtain the plaintiff laborer's medical records and films from Bethpage MRI, union records from Local 1010, as well as non-privileged portions of a legal file pertaining to plaintiff's application for Social Security Disability from Grey & Grey, and a social security disability authorization. The plaintiffs have also fully responded to third-party EEA's demand for Medicare information. The plaintiffs have, therefore, fully complied with the so ordered stipulation and filed their note of issue and certificate of readiness in good faith.

The City's request for supplemental vocational rehabilitation examination is denied. The plaintiff has already undergone a vocational evaluation and has had a post-operative orthopedic examination. The City did not explain why the information obtained from these prior examinations and from other discovery is inadequate (see, Gomez v Long Is. R.R., 202 AD2d 633 [2nd Dept. 1994). The City did not submit any evidence regarding the specific nature and scope of the requested examination and failed to describe with specificity what such an examination would entail.

The request to strike the note of issue as a result of alleged outstanding discovery in the third-party action is denied. Both the City and AFC have had ample opportunity to move to compel discovery against EEA, but failed to do so. Furthermore, the third-party defendant has not offered any excuse for the delay in completing discovery. This case should, therefore, remain on the trial calendar pending completion of discovery in the third party action (see, National Lease Income Fund 6 L.P. v George, 222 AD2d 662 [2nd Dept. 1995]; Torres v New York City Tr. Auth., 192 AD2d 400 [1st Dept. 1993], appeal withdrawn, 210 AD2d 1012 [1994]). The third-party defendant EEA, however, is ordered to comply with all outstanding requests for discovery within 20 days of service of notice of entry of a copy of this order containing the Clerk's dated stamp of entry.

The branch of the motion by the City and the branch of the cross motion by AFC to extend the time to file a summary judgment motion is denied as moot since both the City and AFC timely served and filed summary judgment motions.

Accordingly, the motion by the plaintiff, pursuant to CPLR 3212, for summary judgment on the issue of liability under Labor Law sections 240(1) and 241(6) is granted.

The cross motion by the defendant City, pursuant to CPLR 3212, for summary judgment is denied.

The cross motion by the third third-party defendant AFC, pursuant to CPLR 3212, for summary judgment is denied. [*8]

The branches of the motion by the defendant City and the branches of the cross motion by third-third party defendant AFC to vacate the note of issue and to extend the time to file a motion for summary judgment are denied.

The branch of the motion by the defendant City and the branch of the cross motion by third-third party defendant AFC to compel discovery is granted to the extent that third-party defendant EEA is ordered to comply with all outstanding discovery requests within 20 days of service of a copy of this order, containing the Clerk's dated stamp of its entry, with notice of entry.

The motion by second third-party defendant Tams Allied, pursuant to CPLR 3212, for summary judgment is granted, and the second third-party complaint and all cross claims against Tams Allied are dismissed.

Dated: April 8, 2011

J.S.C.