Scheiner v Port Dock & Stone Corp.

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Scheiner v Port Dock & Stone Corp. 2011 NY Slip Op 32612(U) October 4, 2011 Supreme Court, New York County Docket Number: 112541/2008 Judge: Marcy S. Friedman 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. SCANNED ON 101512011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY -----ma-. RCX ~~~~~ PART &' Index Number : 112541/2008 SCHEINER, JAMES vs INDEX NO. PORT DOCK MOTION DATE Sequence Number : 004 SUMMARY JUDGMENT MOTION SEQ. NO. P I MOTION CAL. NO. The following papers, numbered 1 to 7 Notice of Motion/ Order to Show Cause Answering Affidavita - $ were read on this m o t i o n N f o r ~ - Affidavlta - Exhibits ... Exhibits Replying Affidavita Cross-Motion: dyes 0 No Upon the foregoing papers, it la ordered that this motion nV L ~ c\JrGi ,.. u-fI re I NEW YOHK (;C-)UNTY CLERK'S OFFICE / Dated: /d :heck one: -[7 FINAL DISPOSITION Check if appropriate: u DO NOT POST 0 REFERENCE - ~ 7 [* 2] SIJPREME UOUR I OF 1 1 IK STATE OF NEW Y O R K c ouN 1-Y NEW YORK - PART 57 PRESEN I : 1 Ion. Marcy S. Friedman, JSC X JAMES SCHEINER and JISNNIFER SCHEINER, Iiidcx No. 1 1254 1 /2008 I laintifjri., - against - I)I C:ISIONIORDER PORT DOCK ANI1 S I ONI CORP., J.T. MAGEN CONS TIUJCTION COMPANY INC., .l. l . MAGGN & COMPANY, INC., and FORDHAM CONSTRUCTION CO. INC., Uejindants. X J.T. MAGEN AND COMPANY, INC. i/s/lda J.T. MAGEN CIONSTRIJCTION COMPANY INC. Third-party Indcx ?..I. 590344/2009 ? . Third Puvty Plaint# - against - X In this Labor Law action, plaintiff seeks damages for in-juries sustained on Apri I 1 7, 2006 whilc working as a carpentcr. llcfendant J.T. Magen and Company, Inc. (Magen) moves for suimiiary judginciit dismissing plaintifl s claims under Labor Law $$24O(l ) , 241 (6), arid 200, and plaintill s claim for coniinoii law ncgligencc, as well as any cross-claims. Magen also 1 [* 3] moves for sumiiiary judgmeiit oil its indemnification claims against defendant Fordham Construction Co. (Fordhani). Fordham cross-movcs for summary judgment dismissing plaintill s complaint. Ikfcndant Port I h c k and Stone Corp. (Port Dock) moves for sunimaiy j udgnient dismissing plaintiffs complaint and all cross-claims. Port Dock alternatively moves for siiiiiniary judgmcnt on its cross-claims against Magcn and Fordham. PlaiiitifT cross-moves against all defendants li)r suininary judgmeiit on his Labor Law $240( 1 ) claim. Plaintiff was employed by non-party Putnam Intcriors (Putnam). (P. s Dep. at 15.j Putiiam was liircd by Fordhain to do rough carpentry at the site. (b ordhani AK in Support, 1 3.) 1 Fordham was a subcontractor at the site, liircd by Magcn to do carpcntry work. (Magcn Aff. in Support, 7 4.) Magcn was hired by non-party American Chophousc Enterprjscs LLC (American Chophouse) under a contract that named Magen as the construction manager. (Port Dock Ex. 15,) I lowever, Magcn acknowledges that it performed thosc tasks that a gencral contractor 1 ordinarily pcri orms at a work site. (Magen Aff. in Opp. to Port Dock Motion, 1 4.) American Chopliouse had a 40-year lease with Port Dock for the propcrty in qucstion. (Port Dock Aff. in Support, 7 9.j At tlic time of thc accident, plaintiff was working as a carpcnter on a construction projcct to build a new rcstaurant. (P. s I k p . at 15.) It is undisputcd that plaintiff was injured wlicn a framing claiiip fell from abovc and hit plaintiff on the head. (J at 48.) As discussed more fully l i below, the parties dispute the caitsc of the fall oftlic clamp. I hestandards for sumniaiy judgment arc well settled. The movant must tendcr evideiicc, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgnicrit. (CPLK 3212[b]; Zuckcrman v City ofNew York, 49 NY2d 2 [* 4] 557, 562 [ 19801.) Failure lo make such showing requircs dciiial of thc motion, regardless of tlic sui iicicncy of thc opposing papers. (Wincgrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [ 1985 I.) Oncc such prooPhas been offered, to defeat summary judgment thc opposing party must show facts sufficienl to reqiiirc a trial oi ariy issue offact (CPLR 321 2, subd. [b)). (Zuckcrman, 49 NY2d at 562.) 1,abor Law $240111 13cfcndants seek suiniiiaryjudgment dismissing plaiiitiff s §240( 1 ) claim on thc ground, among othcrs, that lhe framing clamp that struck plaintiff was not in the proccss of being sccured or hoisted at the tiine of accident, and was not an objcct that required securing. (SeePort Dock Aff. in Support, 7 42.) Plaintiff conlends that his co-worker had to use a framing clamp to perform the work in progress at tlic time o P plaintiff s accident, and that the clamp was iinpropcrly secured. (P. s Ai fin Support, 7 4.) Labor 1.aw $24O( 1 ) provides: All contractors and owiicrs and their agents, * * * in the erection, dcinolition, rcpairing, altering, painting, clcaning or pointiiig of a building or structurc shall furnish or erect, or causc to be iurnishcd or erected fbr the perfonnancc of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropcs, and other devices which shall bc so constructed, placed and opcl-atcd as to givc proper protection to a person so employcd. The purpose ofthe section is to protect workcrs by placing the ultjinate responsibility lor worksite safcty oii tlic owiicr aiid general contractor, instcad of the workers themselves. (Gordon v Eastcrn Iiy. Supplv, h c . , 82 NY2d 555, 559 [1993]; Iiocovich v Coiisolidated Edison 1 It is noted that 1;ordhatii sccks dismissal ol llie Labor Law $240( 1 ) claim on the grounds advanced by its co-defendants. It does not seek dismissal on thc ground that it is a subcontractor, not a gciicral contraclor. 3 [* 5] - 78 NY2d 509, 5 13 [ I99 I].) Co., Thus, section 24O( 1) imposes absolutc liability on owners, contractors and their agents for any brcach of the statutory duty which has proximately caused accident alone does not establish a 1,abor Law injury. (Gordon, 82 NY2d at 559.) J A J n $240(1) violation or causatioii. (Hlakc v NciEhborhood Hous. Servs, of Ncw York City, lnc., 1 N Y 3 d 280, 289 [2003].) In order to establish liability under rj24O( I), it must be shown that thc statute was violated and that the violation was a contributing cause ofthe plaintiffs fall. (Id.at 2 87-2 8 9 .) Whilc scctioii 24O( 1 j sliould bc construed liberally so as to el ftctuatc its purpose, it is well scttlcd that thc statutc applics only to elevation-related hazards. (Koss v Curtis-Palmer IJydro-Klcc. c o., 81 NY2d 494, 500 [ 19931; Rocovich, 78 NY2d at 514.) lhc hazards contcmplated by the statute are those related to the elkcts of gravity whcre protective devices a are called [or either because 01 difference between the elevation level 01 the required work and a lower level or a difference between the elevation level whcrc thc worker is positioned and the higher level of the materials or load being hoisted or secured. (Rocovicli, 78 NY2d at 5 14; Narducci v Manhasset Bav Assocs., 96 NY2d 259 [2001].j As a thrcshold niattcr, thc court rc.jccts defendants contention that the protection of Labor Law &j240(1) does not apply because the clamp was not being hoisted or sccured at the lime of plaintiffs accident. It is well settled that falling object liability is not limited to cases in which the Filling object is in the process o l being hoisted or secured. (Ouattrocchi v F.J. Sciame Coristr. Co., 11 NY3d 757, 758-759 [2008]; see also Oular v City of New Yor-k, 5 NY3d 731 [2005], 1 1 AD3d 593 [2004]; Vargas v City o1 New York, 59 AD3d 261 11 f k p t 20091.) 4 [* 6] I11 moving for summary judgment, delelidants furthcr contend that the clamp that hit plaintiff did not require securing. In support of this contention, deferidants cite the accident report. (Ex, L to Magcii Motion.) This report, which was authored by John Thorne, plaintiff s foreman, states: A franmiiig [sic] clamp fell o l l the top of thc scaffel [sic] 9 ft and hit Jim in the back olhead. Hard hat fell offjust before the accident Ihappencd]. Defendants also cite plaintiffs testiinony that he did not know the location above him from which thc clamp MI. (P. s Dep. at 50.) In opposition, plaintiff citcs his deposition testimony explaining the events leading up to his accident. Plaintiff tcstificd that at the time of the accident, lie was working with another Putnaiii employee to create an access line for the cciling. 1 lis partner was on a scaffold approximately 20 reet above him, while plaintiff was on thc ground approxiniatcly three to four feet away from the scaffold. (P. s Dep. at 43-44,47.) The crcation of the access line required plaintilf to make a pencil mark on the lloor so that numbers could be transfkixd back up to the ceiling. (Id.at 46, 48.) Plaintiff further explained that there was 110 way [his partner] could see the mark o n the iloor, and that he had to reach out of the scaffolding to see the mark. (Td. at 5 1 .) I le also tcstificd that clamps, like the one that hit him, are used not only to clamp two picccs of metal[] togcthcr (id. at SO), but also to help a worker steady himself as leans over the scafhld, by serving as a handle. (Id.at 5 1, 53.) Plaintifl acknowlcdged that lie did not remember whether he actually saw his paitncr using a clamp to steady hiinsell befbre the accident. (Id. at 51 ,> Howcvcr, hc specifically described the work [hat he and his partner were doing at the time of the accidcnt, thc need his partner had to lean over the scaffold in order to do this work, and the Fact that it was common 5 [* 7] lor a framer to usc a clamp to steady Iiiiiisell whcn leaning over thc scafTold. (Id.) Plaintiff testified that lherc wcrc clanips attachcd to the sidc of the scaffold, as well as clamps in ihc ceiling, t h e were handlcs. (Id.at 60.) to the ceiling on tlic day of his accidcnt. 1 IC estimated that there werc 30 to 50 clamps attached (Id.at 61 .) Signiiicaiitly, clelendants do not dispute plaintill s testimony as to the work he and his partncr were perforining at the tiinc of the accident. Nor do dcfcndants submit any cvidence thal Iraming clamps were not used to enablc workers to steady thernselvcs. On the contrary, Sean Murray, Magen s Vicc l resident, testified thal it is a general practice lbr installation of f ramcs to use clamps. (Murray Dep. at 62.) While he also testified that he was not awarc of anyonc at thc site using a framing clainp to maintain balance, this testimony merely shows his lack of pcrsonal knowlcdgc of such use. Moreover, he acknowledged that it would iiot necessarily be an unsafe practice to attach a clamp to the ceiling for this purposc. (d) Magen s construction I. superiiitcndent, Mikliail Gorclik, also tcstified that one worker was not supposcd to work above another. (Gorelik 13ep. at 52.) Under tlicsc circumstances, the court holds that plaintiff s detailed testimony as to the work that hc and his partncr wcre performing just before the accident, and as to the practice of using clanips [or balancc, is sufficient to raise a triable issuc of hact as to whether 1ic was hit by a clamp that was not propcrly secured and fcll from the ceiling. 111 so holding, the court is unpersuaded by dcfendants contention that plainiifT cannot provc thc cause o l his accidcnt. Plaintiff s burdcn at trial will lint bc to prove tlic cause with absolutc ccrtainly but to dcnionstrale that it is more likely than not that tlic cause was oiic for which onc or more d e h d a i i t s is liable. (Gayle v City of New York, 92 NY2d 936, 937 [19981.) [* 8] The court lnrther rejects Port Dock s and Fordham s contention that plaintiffs f d u r e to secure his hard hat was the solc proximate causc of his injury. It is well settled that cornparativc negligence is not 3 defense to a Labor I,aw 5240(1) claim. (Gordon, 82 NY2d at 562.) In order for a plaintiffs acts to constitute a dcfcnsc to a cj240(1) claim, such acts must have been the sole proxiniatc causc of tlic plaintiffs injuries. (Weininm v Hamdorn & Ch., 91 NY2d 958, 960 1998 1, rcarg dcnicd 92 NY2d 875; Blake, I NY3d al290.) [Ill a statutoiy violation is a proximatc causc of an injury, the plaintiff cannot be solely to blaine for it. (Id.) On this record, defcndants fail to demonstrate that plaintiffs act was the sole cause of his injury. PlaintifTtestilied that before his accidcnt, hc was on all fours, about to mark the floor, and [als [he] bent over, thc hard hat fcll off and the clamp was on its way down and hit [him] in the head. (P. s Dep. at 48.) Plaintiffs forcman tcstificd that hard hats have an interior feature that tlic workcr ilts to his or her head, and that if properly fitted, a hard hat would not fill off. ( l horne Ilep. at 72.) He also testilied that the worker was rcsponsible for adjusting the interior. (Id. at 82.) Plaintiffs foreman did not inspect the hard hat aficr thc accidcnt, and had no knowledge as to whether plaintiffs hard hat had bccn properly calibrated or fitted on the day ol the accidcnt. ( l home Dep. at 73.) However, even assuming arguendo that plaintiff did not fit his hard hat properly, he will not have been the sole proximate causc of his accident if a jury tinds that a cause was the falling of an improperly secured clamp. (& Rlakc v Nci~liborlioodf IQUS. Sews. of Ncw York City, Inc., 1 NY3d 280, supra.) The courl accordingly holds that triable issucs offact exist on plaintill s Labor Law $240( 1 ) claim. Ilcfcndants iiiotions and plaintiffs crossmotion for suniinary judgmcnt on this 7 [* 9] claim should accordingly be dcnied. I A o r Law 624l(6) claiin I.)cfcndants also move for summary .judgment on plaintiffs Labor Law $241(6) claiin on the ground that the scctions of the Industrial Code on which plaintiff prcmises this claim are too gencral or do not apply. J ,abor Law $24 1 (6) provides: All contractors and owners and their agents the following requirements: * * * shall comply with 6. All areas in which construction, excavation or demolition work is being pcl-formed shall be so constructed, shored, equipped, guarded, arrangcd, operated and conducted as to provide rcasonable and adequate protection and safety to the persons employcd therein or lawfully frequenting such places. It is well settlcd that this statute requircs owners and contractors and their agents to provide reasoriablc and adeyuatc protection arid safcty for workcrs and to comply with tlic specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. (u, at 501-502.) In order to maintain a viablc claim under Labor Law 81 NY2d $24 1(6), thc plaintiff must allege a violation of a provision of the Industrial Code that mandates compliancc with coiicrcte speciijcations, as opposed to a provision that establish[es] general safcty standards. not. (Id.at 505.) l helorincr give rise to a nondelegable duty, while thc latter do (d) I. Although plaintift7s Hill of Pai-ticulars cites numerous scctions of the Industrial Codc, in opposing deikiidanis iiiotioii to dismiss, plaintiiT allcgcs only that defendants violatcd $23- 8 [* 10] 1 .7(a)(1).2pertaining to ovcrhead hamrds. (P. s Aff. in Opp. [attachcd to P s Cross-Motion],1 1 11 ,) This section is sufficiently specitk to support liability under Labor Law $241(6). (& Zuluaga v P.P.C . Constr., LLC, 45 All3d 479 [ l Dept 20071.) Ilcfcndants Magen and Port Ilock argue that 12 NYCKR 23-1.7(a)(l) is inapplicablc as plaintiff was not working in an arca normally exposed to falling material.3 (& Port Ihck Aff in Suppofl,1 45.) In support of this contenlion, defendants cite the testiiiiony olplaiiitiff that he 1 did not rccall scciiig any clamps la11 froiii the ceiling at the sitc prior to the accident. (P. s llep. at 56.) Defeiidants also cite the testimony of various u l delendants representatives to the same ell ect. (& Murray Dep. at 63; Gorclik Dep. at 20.) Plaintill testifled that 1 t Ihings were falling on thc construction sitc. Things fall all day long. (P. s Dep. at 56.) Howcvcr, this vague, coiiclusoty testimony is insufficient to raise a triable issue of fact as to wlicthcr plaintill was working in an area that is normally exposcd to falling iiiatcrial. Plaintifrs section 241 (6) claim should accordingly bc dismissed. Ilei endant Port Dock s Liabilitv as Owner under $8240/1) and 241(4) Ilcfcndant Port Dock moves for summary judgment on plaintifl s Labor I,aw claims on the ground that it was not an owner for piirposes of imposition of vicarious liability undcr 23-1.7(a)( 1) providcs: Every place whcrc pcrsons are reqiiired to work or pass that is norinally exposed to falling iiiatcrial or objects sliall be provided with suitable overhead protection. Such overliead protection shall consist of tightly laid sound planks at least two inches thick l i i l l size, tightly laid tlircc-ynaiter inch exterior grade plywood or other inatcrial of equivalent strength. Sucli overhead protection shall bc provided with ii supporting structure capablc of supporting a loading o r 100 pounds pcr square foot. 3Defend:uit Fordham also moves for suinmaty judgment on plaintiff s 624 l(6) claim, but iiiakes no argument as to $23- 1.7(a)( 1 ) specifically. [* 11] sections 24O( 1 ) arid 24 1 (6). In support o l the motion, Port Dock asscrts that although it owned the properly at which h e accident occurred, it did not contract for or control the construction. (Port Dock Aff In Support, 11 18- 1 9.) Port Dock submits the testimony of ils prcsident, Oreste 1 1 Albicocco, that he did not sign any construction contracts and did not hirc anyone to observe the construction or speak to any ol the contractors. (Albicocco Dep. at 10, 19-20.) Port Dock annexes a 40-year lcasc to American C hophouse which provided for Anicrican Chophouse to renovate the prcmiscs for- a restaurant. (Lease, 7 45 [Port Dock, Ex, 141.) Port Dock also supports its motion with tlic contract for the renovation between Anicrican Chophouse and Magen. (Port Dock, 17x. 15.) In opposition, plaintill-cites the testimony of Port Dock s president that he visited the site and signed off on the building pcrmits. (Albicocco Dep. at 10, 18-19.) The courl liolds that Port Dock qualifies as a owner for purposes olthe Labor Law. Port i Dock cites authority which holds that the owner must contract for the work in order to be liablc. (& Fricrson v Cviicoursc Pla7a Assoc., 189 AD2d 609 [I Dept 1993 1; SwcetinE v Board of Coop. Educ. Sews., 83 A113d 103 19811.) However, this authority does not govern as it is now wcll scttlcd that an owncr who did not contract for the construction that rcsulted in a worker s injury may bc held vicariously liable under the Labor Law where tlicrc is some nexus bctwccn thc owner and the worker, whether by a lease agrccinent or grant oLan easeiiiciit, or other property interest. (See Morton v Statc, 15 NY3d 50, 56 120101, quoting Abbatiello v Tmcaster Studio Assoc., 3 NY3d 46, 5 1 [2004].) An exception, which is not applicable here, may be found wlicrc an owncr had no choice but to allow [workcrs] to enter its property. (Scaparo v Village of Ilion, 13 NY3d 864, 866 120091.) Port Dock s motion to dismiss the complaint on this 10 [* 12] issue should accordingly bc dcnicd. Labor Law t; 200 and Common Law Neglicence Labor Law $200(1) providcs i n pcrtinciit part: All places to which this chaptcr applics shall be so constructed, cquipped, arranged, opcratcd and conducted as io provide reasonablc and adequate protection to the lives, health and safcty of all pcrsons employed thcrcin or lawfully frequcntiiig such places. All machinery, equipment, and devices in such placcs shall be so placed, operated, guarded, and lightcd as to provide reasonable and adequate protection to all such pcrsons. Labor Law $200 is a codifjcation of the comnion law duty imposed upon an owner or contractor to provide construction workers with a sale place to work. (See Comes v Ncw York State Elec. & Gas Corp., 82 NY2d 876, 877 119931.) Rcccnt cases have clariikd that liability under scction 200 rimy arise in two circumstances: where workcrs arc injured as a result ofthe imaiiricr in which the work is performed, or where they arc iiijurcd as a result of a dangerous condition 011the site. (Makarius v Port Auth. of Ncw York and New Jersey, 76 AD3d 805, 808 I Roman, J., coiicurring], 817 [Moskowitz, J., concurring] [ 1 Dept 201 01, citing Ortega v Puccia, 57 AD3d 54, 6 1 [2 ldDept 2008].) It is well settled that [wlhere the alleged defect or dangerous condition arises lrom thc contractor s mcthods and thc owner exercises no supervisory control over thc operalion, no liability atlaches lo the owner iinder the common law or under Labor Law $200. (Comes, 82 NY2d at 877; see also Ross, 8 I NY2d 494, SO5 [ 19931 [same for general contractor]; Reilly v Newireen Assocs., 303 AD2d 214 [lst Dept 20031, lv denied 100 NY2d 508.) I herationale lor this rule is that [alii iinplicit precondition to [the] duty to provide a safc place to work is that the parly charged with that responsibility have the authority to control the activity bringing about the 11 [* 13] iii-juiy lo enable it to avoid or correct an uiisde condition. (See Russiii v Louis N. Picciano & - 54 NY2d 3 1 1, 3 17 198 I I.) Liability does not attach solely bccause the owncr had notice Son, of the allegcdly unsafc iiiaiiiicr in which the work was perhrmed. (Conics, 82 NY2d at 878; Ortega, 57 AD3d at 61 ,) Ncitlicr L gc~icrd supervisory powers nor thc authority to stop work for safely reasons amounts to [he conlrol necessary to impose liability under Labor I,aw $200 or a comiiion law ncgligerice claim. (Foley v Consolidated Edisoii Co. of New York, Inc., 84 AD3d 476, 477-478 11 Dcpt 201 11; I lufihcs v J ishman Constr. Corp., 40 AD3d 305, 309 11 Dcpt 20071.) General supervisoiy authority for tlic purpose of inspccting thc work product, or reporting safety violations, is likewise insufficient to establish liability. (Vaneer v 993 Intervale Ave. HoiisinF: Development Fund Corp., 5 AD3d 161 11 Dept 2003 J ; Cahill v I riborouEliBridge & I unnel Authority, 31 AD3d 347, 350 [ l Dept 2006J.) That a general contractor has an on-site safety manager with responsibility for the safety of the work done by subcontractors, or for holding sakty meetings, does not provide any basis for imposing liability on the gcncral contractor based on an injury allegedly caused by a subcontractor s work. (O Sullivan v ID1 Constr. Co., 28 AD3d 225 11 Dept20061, 7 NY3d 805 120061; Hughes, 40 AD3d at 309. See also Gconie v OD & P NY Ltd., SO AD3d 444 11 Dept2008][safety meetings].) Kathcr, 1 a I bsciit any evidcncc that Ithe owner or general coiitractor] gave anything niorc lhan gencral instructions as to what needcd to bc donc, as opposcd to how to do it, these entitics cannot be held liable under Labor L,aw 200 or for common-law negligence. (O Sullivan, 28 AD3d at 226.) An owner or general contractor thus will not be liable under section 200 whcre the evidence deinoristrates that the plainti W s ernploycr, and not the owner or general contractor, 12 [* 14] specifically coiitrollcd thc methods by which the plaintiffs work was perf ormed. (See id.; Huclhcs, 40 AD3d at 307-308; Reilly, 303 hD2d at 219-220.) In contrast, whcrc tlic gciicral contractor has or exercises thc authority to control the iiiethods by which plaintill s work is perlormed, liability may be established. (& Rizmto v L.A. WcnRel- Constr. Co., 91 NY2d 343 [1998] [where gencral contractor had authority to cxclude workers l?om aii area in thc worksite and to direct one contractor to ccase operations while another potciitially hazardous activity was taking place nearby, triablc issue of fact found as to whether general coiitractor had rcquisitc supcrvisory control to be liablc under 5200.J;Perri v Gilbert Johison Entcrs., Ltd., 14 A I X d 681, 683 [2ndDept ZOOS] [triablc issue offact found as to general contractor s supcrvision and control where general contractor supervised al I coiistructioii work, purchascd materials, arid was refkrred to as thc supervisor. ] .) Where, however, the injury arises out of a dangerous condition on the site, rather than the methods or niaterials used by the worker or his employer, it is not necessary l o show that [thc owiicr or general contractor] exercised supervisory control ovcr thc manner of performance o L the injury-producing work, only that it had iioticc of thc condition. JMinorcwk v Dormitory Aulh. 01 State ofNew York, 74 AD3d 675 [lst I k p t 201 01; Seda v Epstcin, 72 AD3d 455 [ 1st Dept 20101; Murphy v Columbia Univ., 4 AD3d 200 [ l q tDept 20041.) General awareness that a dangcrous condition may be present is insufficient. (& Gordon v Anicricaii Muscum of Natural Ilistory, 67 NY2d 836, 838 119861.) The iioticc must call attention to thc specilk defect or hazardous condition and its specific location. (Mitchell v Ncw York Univ., 12 AD3d 200, 20 1 [ 1 Depl20041.) Furtherinore, constructive noticc of a defect requires that the dcfect iiiust be visible and apparent and it inust exist lor a suff;icient lcngth of time prior to the 13 [* 15] accident to lm-iiiit defendant s employees to discovcr and rcniedy it. (C+ordoIi,67 NY2d at 837.) Applying tlicsc priiiciples to the instant case, thc court iinds that defendants Port Dock and Magen make a priina hcie showing that they did not supervisc or control plaintiff s work. I hc court holds that plaintill s injury arose out oi the means and nicthods ol-the subcontractor s work, as it is undisputed that he was in.jured by a falling clamp wliilc perl onning work for Putnarn. The issue is thereforc whether defendants exercised supcrvisory control over the work. In support of tlicir motion, def endants rely on the undisputed evidencc that plaintill s employer, Putnani, supervised his work. Plaintiff s forcnian testiiied that lic was the only person who supervised Putnam employees, including plaintiff, as to how the work was being done. (Thoriie Dep. at 74.) Plaintiff confirmed that Thorne supervised him belore the accident, and that no one but Thorne supervised him. (P. s Dep. at 70-71.) Such tcstimony has repcatcdly been held to satisfy a dcfciidaiit s burden of showing that it did not supervise or control the activity that gavc rise to the injury, and lo shift thc burden to the plaintiff to raisc a triable issue oChct. (Reillv, 303 AD2d at 220; see O Sullivan, 28 AD3d at 226; I lughes, 40 AD3d at 307308.) I n opposition, plaintill Fails to iiicct this but-dcn. As discussed abovc, Port Dock submitted uncontradicted evidencc that it did not contract lor or supervise the work. The evidence that its president visitcd the site and signed permits (sce supra at lo), is plainly insullicient lo raise a triable issue of fact as to Port Dock s supervision and control. The record prcscnts a closer question as to Magen s supervision and control. Magen s 14 [* 16] construction siipcriiitcndent testified that he oversaw the subcontractnrs work (Magen 13ep. at 9) and walked the site three hundred times a day to coordinate betwccii the trades. (Id.at 63-64.) 1 IC stated that lie had the authority to stop work if he saw a worker on a scaffold who was performing work that he considered unsafe. (a 3 1-32.) Whcn asked about safety concerns at at the framing slage, lie rcsponded: Just to use proper tools and eyuipiiicnt, and work in a safety likc one person not supposed to work above anothcr person, using safc ladders, tiiatiiier. I ~iieaii, using not darnaged or spliced extension cords, using GFI. It s a lot [ol] rulcs and rcgulations at each stage of the work. (Id.at 52.) He also stated that everyoiic liad to wear hard hats, and that if 1ic saw someone working without a hard hat, he would throw them out o l the job. (Id.) Magcn s vice president tcstified that Magcn had a site safety supervisor who visited the sitc as requircd. (Murray Dep. at 60.) Magen issued a document that was given to subcontractors regarding Magen s sitc safety policies. (Id.at 17-18, 56.) I hc safety respoiisibilitics and conccrns to which Magcn s represcntalives tcstiiied arc cxamplcs o i general supervisory authority which do not give rise to liability. Thcrc is no evidence in the rccord that Magen cver instructcd plaintiff as to tlic means by which plaintifl s work should be perhrmed. Magen s authority to stop work, issuance of gcneral safety directives, and maintenaiicc of a site sakty supervisor are insufficient, under the legal authorities discussed above (supra at 12) to raise a triable issue offact as tb whether it had the requisite supcrvision and control for liabilily under section 200. The court reachcs a different rcsult as to Fordham. Fordham moves lor summary judginent dismissing the section 200 claim on the ground that it did not have notice o f a dangerous condition of hlling clamps. (Fordliaiii Aff. In Support, 77 37-38.) Fordham contends 15 [* 17] that a Labor Law claim requires proof of both supcrvision and noticc. This contention is incorrect utider tlic r-ccciitly clariGed authority discussed abovc (supra at 1 1-1 3). Liability under section 200 is not contingent on notice, but rather on supcrvisory control. (See Conies, 82 NY2d at 877-878.) While Fordham cites strong evidence that it did not havc notice of problems at the sitc with falling clamps (Fordham Affidavit In Support, 7 38), it does not claim, let aloiic make any sliowing, that it did no[ exercisc supervision and control over plaintiffs work. Nor could it do so based on the mere lact that it subcontracted the work to Putnun. (cf. Nascimcnto v Bridgchanipton Conslr. Corn., 86 AD3d 189 [l" Dept 201 I].) The couit accordingly holds that plaintiff's section 200 and coininon law negligcnce c l a i m sliould bc dismissed against Port 13ock and Magen, but not against Fordham. Indeninilkat ion Claims Port Dock secks contractual indemnification from Fordhain and common law incleniniiication from Magen and Fordham. Magen seeks contractual and common law indcni ni ficat ion iiom Fordhain, When seeking contractual indemnification, the party sceking indemnity must provc it was ''free from any negligence and was held liable solely by virtue oi'lhe statutory liability." (Correia v Profcssioiial Data Mct., Inc., 259 AI32d 60, 65 [l"Dept 19991.) In contrast, whcn seeking common-law indemnilication, the party sccking indemnity must prove not just that it was not negligent beyond the statutoiy liability but also that thc proposed indemnitor was guilty of sonic ucgligcncc that contributed to causing the accident in question. (Correia, 259 AD2d at 65; see generally McDcrmott v City of New York, 50 NY2d 21 1.) 16 [* 18] ITcrc, the Purchase Order betwccii Magcn and Fordham contains an iiidcmnifkatioii provision which provides, in pertinent part: To the Iiillest extent permitted by Law, Subcontractor will iiidcrnnify and hold harmless J.T. Magcii & Chnpany, Jnc. and Owner * * * from and against any and all claims, suits, liens, judgments, damages, losses and expenses including reasonable legal fccs and costs, arising i n wholc or in part and i n any manner from the acts, omissioiis, breach or default of Subcontractor [lordham], its officers, directors, agent, employees and subcontractors, in connection with the perlormance of any work by Subcontractor pursuant to this Purchase Order. (Purchase Order, 1 1 1.2 [Ex. P to Magen Motion].) 1 This indeniiiilication provision requires Fordhain to indcninify Magen and thc Owner, Port Dock, for any claim arising out of thc work of Fordham or its subcontractor Putnam, without regard to Fordhain s negligence. (See Hrown v Two Exch. Plaza Partners, 76 NY2d 172, 178 [l 990.1.) l laintifrs accident clearly arose out of Fordham s work, as plaintiff was injured while perlbrming work l or Fordham s subcontractor. As discussed in coimection with plaintiff s section 200 claim, the evidcncc does not raise a triable issue offact as to whethcr Port Dock or Magen supervised or controlled plaintilrs work. Nor is there any evideiicc in the record that Port Dock or Mageii had notice of a dangerous conditioii causcd by falling clamps. Plaintiff testificd that hc was not awarc of Filling clamps. (P. s Dep. at 56, 174.) Port Dock niakcs an unl-cbutted showing that it did not have a prescncc at thc work site. (& Albicocco Dep. at 10, 19-20.) Magcii s superintcndcnt testified, without contradiction, that he did not recall any previous incidciits involving falling clamps. (Ciorelik 13cp. at 20.) Port Dock and Magcn thus demonstrate the absence of negligence on their part. They are accordingly entitled to contractual i ndemnifjcation from Fordham, 17 [* 19] In view of thc abovc holding, the court does not reach Port Dock s or Magen s claim for common law indemniiicatiori from Fordham. As to Port Dock s claim fc7r coiiimoti law indemnification from Magen, the court holds that this claim should be deiiicd, based 011 Port Dock s failure, lor the reasons already stated, to show or raise a triable issuc of h c t as to Magen s negligence. It is accordingly hereby ORDERIIII that the motion ofdcfcndant J.T. Mageri and Company, Inc. (Magen) for summary judgmctit is granted to the extent 01 dismissing plaintiffs claims against it under Labor Law $$241(6) and 200, aiid for common law ncgligence; and it is further ORDERED that the aforcsrtid motion o l defendant Magen is graiitcd to the extent of awarding Mageri partial surnniaiy j udgrneiit as to liability on its contractual indemnification claim against d e h d a i i t Fordham Construction Co. (Fordham); and it is furthcr ORDERED that an assessment on damages shall be licld at the time of trial, or after any other disposition of tlic uiidcrlyiiig action, upoii the filing of a note of issue and payment of the proper fees, if any; and it is further ORDERED h a t the cross-motion of Fordhain for suinmaryjudgrnent is granted to the extent of dismissing plaintiffs Labor Law $24l(6) claim against it; and it is furthcr OIIDERED that the motion for summary judgment of defendant Port Dock and Stone Gorp. (Port Ilock) for summary judgmciit is granted to the extent of dismissing plaintiffs claims against it undcr Labor Law §$241(6) and 200, and ior cominoii law iicgligence; and it is further ORDERED that the ahresaid motion ofdelendant Port Jhck is granted to the extent of 18 [* 20] awarding Port I h c k partial surninary judgment as to liability on its contractual indemnilication claim against dcfcndant Fordham; and it is furtlicr ORDERED that an assessment on damages shall be held at thc time of trial, or after any othcr disposition of the iinderlyirig action, upon the liliiig of a iiotc of issue and payment of the proper fees, if m y ; and it is lurther ORDERED that, within 20 days li-om the date ol'entry of this ordcr, plaintilf shall scrve a copy of this ordcr with noticc of entry upon thc dcfendants and shall iile samc with the Clerk of this Court and the Clerk of tlic 'l'rial Support Office (Room 158); and it is furthcr ORDElKED that the cross-motion of plaintiff for summary judgment on his Labor Law $240( 1) claim is denied; and it is lurther ORDERED that plaintin's remaining claims are severed and shall continue. This constitutes the dccision and order of the court. I Dated: New York, New York October 4. 201 1 NEW YOHK CCIUNTY CLERKS OFFICE 19

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