Gunn v Are-East River Science Park, LLC

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Gunn v Are-East River Science Park, LLC 2011 NY Slip Op 32846(U) October 17, 2011 Supreme Court, New York County Docket Number: 109449/09 Judge: Manuel J. Mendez 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] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. MANUEL J. MENDEZ - NEW YORK COUNTY - I3 PART Justlce JOHN T. GUNN and ANN GUNN, as Co-Guardians for CHRISTOPHER GUNN, an incapacitated Person, INDEX NO. Plalntlff((s), 08-17-201I MOTION DATE -V- MOTION SEQ. NO. ARE-EAST RIVER SCIENCE PARK, LLC, TURNER CONSTRUCTION COMPANY and SITE SAFETY, LLC, Defendant(8) . 003 MOTION CAL. NO. SITE SAFETY LLC, Thlrd-Party Plaintiff($), -vFALCON STEEL COMPANY, INC. and HELMARK STEEL, INC., Thlrd-Party Defendant(s) . ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY, Second Thlrd-Party Plalntlff(s), FILED BCT 24 2011 NEW YORK COUNTY CLERK S OFFICE -vHELMARK STEEL, INC., Second Thlrd-Party Defondant(8) The following papers, numbered 1 to were read on thls motion to/ for Summary Judgment : 7 PAPER$ NIJMBCqER Notice of Motion/ Order to Show Cause -Affidavits - Exhibits ... 1-3 Knswerlng Affidavits - Exhibits 4, 5 cross motion Replying Affidavits Cross-Motion: 6, 7 Yes X No Upon the foregoing papers, it is Ordered that third-partylsecond third-party defendant HELMARK STEEL INC. s motion for summary judgment pursuant to CPLR $321 2, for an Order dismissing the Third-party Summons and Compiaint by SITE SAFETY, LLC, and for dismissal of those causes of action in the Second-Third Party Summons and Complaint by ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY asserted against HELMARK STEEL INC., and to enforce it s cross-clalms for contractual and common law indemnification against FALCON STEEL COMPANY, INC., is decided in accordance with the memorandum decision filed herewit h. [* 2] Accordingly, it is ORDERED that Motion Sequence 003, third-partylsecond thirdparty defendant HELMARK STEEL INC. s, motion for summary judgment pursuant to CPLR 93212, for an Order dlsmissing the Third-party Summons and Complaint by SITE SAFETY, LLC, and for dismissal of those causes of action in the Second-Third Party Summons and Complaint by ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY asserted against HELMARK STEEL INC., and to enforce it s cross-claims for contractual and common law Indemnification against FALCON STEEL COMPANY, INC. is granted only as to the Third Cause of Action in the Second Third Party Actlon, which is severed and dismissed. The action shall continue as to the remaining causes of action. This constitutes the decision and order of this court. Dated: October 17, 2011 MANUEL J. MENDEZ J. S. C. Check one: u FINAL DISPOSITION Check if appropriate: X NON-FINAL DISPOSITION 0 DO NOT POST n REFERENCE [* 3] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HON. MANUEL J. MENDEZ Justice JOHN T. GUNN and ANN GUNN, a8 Co-Guardians for CHRISTOPHER GUNN, an incapacltated person, PART 13, INDEX NO.: 109449109 Plalntlff(s), -vARE-EAST RIVER SCIENCE PARK, LLC, TURNER CONSTRUCTION COMPANY and SITE SAFETY, LLC, Defendant(8) . SITE SAFETY LLC, Thlrd-Party Plalntlff(s), -vFALCON STEEL COMPANY, INC. and HELMARK STEEL, INC., Thlrd-Party Defendant($) ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY, FILED 8CT 24 2011 Second Thlrd-Party Plalntlff(s), NEW YOHK COUNTY CLERKS OFFICE -vHELMARK STEEL, INC., Second Thlrd-Party Defendant(8, , Manuel J. Mendez, J.S.C. : Christopher Gunn was a 28 year old journeyman iron worker, that worked as part of a raising gang working on the plaza level of a building being constructed on behalf of ARE-East River Science Park, LLC. The building was to become a laboratory and office complex located near Bellevue Hospital on East 28thand 2gthStreet, between First Avenue and the FDR Drive. On April 29,2008, Mr. Gunn was as a tag line man In the raising gang working on the plaza level of the worksite, which was approximately 23 to 29 feet above the basement level. The ralslng gang was attempting to Install the tower crane grillage, a structural steel assembly on which a tower crane would be erected. Most of the plaza level was covered with metal decklng, however approximately 23 feet away from where the raising gang was working, there was an approximately 30 inch wide open gap near the periphery. The gap was not covered and there was no decking, planking or safety netting. The raising gang was attempting to instdl intermediate beams, which were smaller cross-beams perpendicular to the parallel north-south header beams. They had been directed to connect a beam on the western side and then force it Into place on the eastern side of the building. Two spud wrenches were placed in the western connection instead of bolts to hold the steal beam in place and Mr. Gunn was directed to use a chain holstlng apparatus, known as a come along, to bring the beam into position at the 1 [* 4] eastern end. He sat on the header beam near the eastern connection and attempted to force the beam into place using the come along to pull it into position. When the eastern end of the beam was within six inches of Its flnal position, he was directed by his foreman to release the come along. After he released the come along, the beam started to swing and pick up speed, pulling the spud wrenches out of the western connection and causing them to fail as a securing device. A gusset plate attached to the beam caught his tool belt and pulled him from the header. Although he was wearing a safety belt and harness with a lanyard he had not tied off, however, there were no lifelines, stanchions or other points in the area to affix the harness. He lost his grip on the beam as it was bucking up and down, and fell through the opening In the metal decking approximately 23 to 29 feet, striking his head and neck on the basement level. Amongst the alleged Injuries are a severed spinal cord, paraplegia and traumatic brain damage. ARE-East River Science Park, LLC (hereinafter referred to as ARE-East ), the owner of the property contracted with Turner Construction Company to serve as construction manager and contractor. Turner Construction Company (hereinafter referred to as Turner ) contracted with Site Safety, LLC, as a consultant to provide services concerning compliance wlth safety regulations and a site safety manager. AREEast and Turner also contracted with Helmark Steel Inc., to fabricate and erect the structural steel and decking at the project. Mr. Gunn was employed by Falcon Steel Company, Inc., which subcontracted with Helmark Steel, Inc. to erect the steel and decking a t the construction project. Motion sequence 003, Is the motion by third-partylsecond third-party defendant Helmark Steel Inc., (hereinafter referred to as Helmark ) for summary judgment pursuant to CPLR 93212. Helmark seeks an Order dismissing the Third-party Summons and Complaint by Site Safety, LLC, and those causes of action in the SecondThird Party Summons and Complaint by ARE-East and Turner asserted against Helmark, also to enforce Helmark s cross-claims for contractual and common law indemnification agalnst Falcon Steel Company (hereinafter referred to as Falcon ). Falcon, opposes Helmark s motion claiming there remain issues of fact concerning negligence which includes preclusion as to common law and contractual indemnification. Falcon claims that the purchase order with Helmark is violative of General Obligations Law 5-322.1 and claims that Helmark has not met its burden of proof that the exclusion in the insurance policy issued to Falcon is a bar to cross-claims based on anti-subrogation principles. ARE-East and Turner, oppose Helmark s motlon clalming there remain issues of fact concerning negligence which prevent summary judgment as to their cross-claims for common law Indemnification. ARE-East and Turner claim that common law Indemnification requires proof of negligence beyond statutory liability and ARE-East and Turner were not negligent. Motion sequence 004, is the motlon by the plaintiffs for summary judgment on llablllty pursuant to Labor Law §240[1], §241[6] and 5200, they seek to have this matter set down for a trial on damages. Plaintiffs claim that there are no issues of fact. 2 [* 5] Site Safety LLC, partially opposes the plaintiffs motion. Site Safety, LLC claims there is a March 5, 2010 stipulation (Partial Opp. Exh. A), signed on behalf of the plaintiffs discontinuing their causes of action with prejudice, against Site Safety, LLC, ONLY. ARE-East and Turner, oppose the motion claiming that issues of fact exist as to the plaintiffs compliance with OSHA Subpart R and pursuant to Labor Law §240[1] as to whether the plaintiff was the sole and proximate cause of his injuries and a recalcitrant worker. ARE-East and Turner claim plaintiff is not entitled to summary judgment pursuant to Labor Law §241[6] and 5200, because there remaln Issues of fact concerning comparative negligence and the industrial code violations cited do not apply to the facts of this case. Falcon, opposes plaintiffs motion cialmlng that issues of fact exist as to the Labor Law §240[1J and 5241[e] causes of action. Falcon claims there remain issues of fact concerning comparative negligence and whether Christopher Gunn was the sole proxlmate cause of his injuries whlch would preclude summary judgment. Motion sequence 005, is the motion by defendant and third-party defendant, Site Safety, LLC, for summary judgment dismissing plalntlff s causes of action pursuant to the March 5, 2010 stipulation. Site Safety, LLC seeks an Order dismissing ARE-East and Turner s cross-claims for tort contribution, common law and contractual indemnity and breach of contract. Site Safety, LLC claims that ARE-East is not an incidental beneficiary to the contract entered into with Turner. Site Safety, LLC, claims that pursuant to their contract with Turner, Site Safety, LLC, was only retained in an advisory capacity as a consultant and was not delegated or assumed Turner s safety duties and obligations as construction manager and contractor at the slte. Site Safety states that it brought a third-party action against Helmark and Falcon, asserting causes of action for tort contribution and common law indemnity. Site Safety, LLC, seeks to have Helmark and Falcon s cross-claims dismissed or upon a dlsmlssal of the causes of action and cross-claims brought by plaintiffs, ARE-East and Turner, to have the third-party action declared moot. ARE-East and Turner, oppose the motion by Site Safety, LLC. ARE-East and Turner claim that Site Safety, LLC, cannot establish that they were negligent as a matter of law. They claim that Site Safety, LLC, is liable to them for common law indemniflcation because it cannot establish lack of its own negligence. They claim Site Safety, LLC, took on additional responslbilltles which demonstrate that it had the authority to direct, supervise and control the plaintiffs work which resulted in his Injuries. ARE-East and Turner claim that Site Saftey LLC is liable to them for contractual indemnification pursuant the hold harmless clause in Its contract. Motion sequence 006, is the motion by defendants and second third-party plaintiffs, ARE-East and Turner, for summary judgment dismissing plaintiffs causes of action asserted against them pursuant to Labor Law $241 [6] and 9200. ARE-East and Turner also seek summary judgment on their cross-claims and thlrd-party claims against Site Safety, LLC and Helmark. ARE-East and Turner claim that they are 3 [* 6] not liable pursuant to Labor Law 5200 because they did not supervise or control Christopher Gunn s work and that he reported to his employer, Falcon, which provided daily job instructions. They claim that Site Safety, LLC, Is liable under common law indemnification because it had authority to stop the entire job or to tell the foreman to take precautions and was responsible for the plaintiWs safety. Alternatively they argue that Site Safety, LLC is liable to them pursuant to the indemnification clause in their contract. They clalm that Helmark was also responsible for site safety and is liable to them under the indemnification clause in their contract. ARE-East and Turner clalm they are not liable pursuant to Labor Law §241[6] because those sections of the industrial code, and the OSHA section cited by the plaintiffs, are not applicable to the facts of this case. Slte Safety, LLC, opposes the motion claiming that pursuant to the contract with Turner liability only applies to full indemnity, when Site Safety, LLC, is completely negligent. Site Safety, LLC, claims that Turner is subject to liability for its own negligence under the contract and there is no contractual indemnification. Site Safety, LLC, states that ARE-East is not a party to the contract with Turner and has no s contractual rights. Site Safety, LLC, claims that no evidence exists and there I only speculation that it negligently failed to properly execute its Inspection responsibilities pursuant to the contract with Turner, therefore the motion should be denied. Helmark opposes the motion claiming that Labor Law 5200 applies to ARE-East and Turner because they exercised supervision and control over the work performed on the premises, and had knowledge of the dangerous condltlon. Helmark claims that a proximate cause for plaintiffs accident, was allowing Falcon employees to install steel grillage on the same level and in close proximity to areas where decking was not yet complete on the date of the accident. Helmark claims that ARE-East and Turner had a contractual obligation to control the work to avoid dangers, they directed and supervised Falcon and had actual knowledge of the dangerous Condition. It claims AREEast and Turner cannot obtain summary judgment for common law indemnification because there remain Issues of fact concerning whether they are at fault for Christopher Gunn s injuries. Falcon opposes the motion claiming ARE-East and Turner had actual knowledge of the dangerous condition and there remain issues of fact Concerning whether they controlled the means and methods of the work being performed by Falcon at the time of the accident. Falcon claims that ARE-East and Turner have not demonstrated entitlement to contractual indemnification. In order to prevail on a motion for summary judgment pursuant to CPLR 53212, the proponent must make a prlma facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v. City of New York, 89 N.Y. 2d 833,675 N.E. 2d 548,652 N.Y.S. 2d 723 [I9961 and Alvarez v. Prospect Hospital, 68 N.Y. 2d 320,501 N.E. 2d 572, 508 N.Y.S. 2d 923 [1986]). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence in admissible form, sufficient to require a trial of material factual issues (Amatulli v. Delhi Constr. Corp., 77 N.Y. 2d 525,571 N.E. 2d 645; 569 N.Y.S. 2d 337 [1999]). 4 [* 7] Contractual lndemnlflcation Contractual indemnification involves the parties agreeing to shift liability from the owner or contractor to the subcontractor that proximately caused plaintiffs injuries through its negligence. An indemnification clause in a contract can be enforced if it is established that the party seeking enforcement was not negligent and was only statutorily liable, or did not supervise or control the work being performed (Amato v. Dept., Rock-McGraw, Inc., 297 A.D. 2d 217,746 N.Y.S. 2d 150 [N.Y.A.D. Iat 20021, Uluturk Dept., v. Clty of New York, 298 A.D. 2d 233,748 N.Y.S. 2d 371 [N.Y.A.D. lot 20021 and Colozzo v. National Center Foundation, 30 A.D. 3d 251, 817 N.Y.S. 2d 256 [2006]). An Indemnification agreement is void as against public policy pursuant to GOL 95-322.1, if it contains language that completely Indemnifies an owner or general contractor for harm caused based on their negligence. The purpose of GOL 55-322.1 is to prevent subcontractors from assuming liability for the negligence of the owner or contractor pursuant to the contract (Brown v. Two Exch. Plaza Partners, 76 N.Y. 2d 172, 556 N.E. 2d 430, 556 N.Y.S. 2d 991 [1990]). An indemnlflcation agreement that modifies the liability for negligence and contains the words to the fullest extent permitted by law or language that limits indemnlflcatlon to subcontractor liability for its own negligence has been found not to violate GOL 95322.1 (Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y. 2d 786, 680 N.E. 2d 1200, 658 N.Y.S. 2d 903 [1997]). A general contractor that has been found partially liable can enforce an indemnification agreement against a subcontractor for the portion of liability that pertains to the subcontractor (Brooks v. Judlau Contr., Inc., 11 N.Y. 3d 204, 898 N.E. 2d 549,869 N.Y.S. 2d 366 [2008]). Contractual indemnification does not supersede the common law right to indemnification. The ability of a contractor to limit its contractual obligation does not necessarily affect its duty to indemnify under the common law (Felker v. Corning Incorporated, 90 N.Y. 2d 219, 682 N.E. 2d 950, 60 N.Y.S. 2d 249 [1997]). COmmon Law Indemnification Common law Indemnification requires the party seeking indemnity to establish that it was not negligent beyond any statutory liability and that the proposed indemnitor s negligence contributed to the causation of the accident (Correia v. Dept Professional Data Management, Inc., 259 A.D. 2d 60, 693 N.Y.S. 2d 596 [N.Y.A.D. lat 19991). Common law indemnification allows a party held strictly liable pursuant to Labor Law §240[1] to be indemnified by the party or partles actually responsible for supervising, directing and controlling plaintiffs work. The party seeking common law indemnification cannot recover If it is negligent beyond strict statutory liability (Gulotta v. Bechtel Corporation, 245 A.D. 2d 75, 664 N.Y.S. 2d 801 [ N.Y.A.D. 1 Dept. 19971and Walker v. Trustees of the Universlty of Pennsylvania, 275 A.D. 2d 266, 712 N.Y.S. 2d 117 Dept. [N.Y.A.D. lst 2000)). Worker s Compensation Law 611 An indemnification agreement entered into prior to the date of plaintiffs accident, prevents preclusion of claims against a plaintlff s employer under Worker s Compensation Law 511 (Gary v. Flair Beverage Corp., 60 A.D. 3d 413,875 N.Y.S. 2d 4 5 [* 8] [N.Y.A.D. lst 20091 and Portelll v. Trump Emplre State Partners, 12 A.D. 3d 280,786 Dept., Dept., N.Y.S. 2d 5 [N.Y.A.D. lst 20041). Worker s Compensatlon Law 511 permits a claim for contractual indernnificatlon to a thlrd party by the employer based on llablllty for injuries sustalned by an employee actlng withln the scope of employment, but the party seeking to be indemnified must prove through competent medical evidence that the person sustained a grave injury. (McKinney s Cons. Laws of NY, Book 64, Worker s Compensation Law $11 and Portelli v. Trump Empire State Partners, 12 A.D. 3d 280, supra). Labor Law 5240r11 The purpose of Labor Law §240[1], also known as the scaffold law is to protect construction workers by imposing strict liability on owners, contractors and their agents, for violations which proximately cause injuries. Labor Law §240[1] Is a strict and absolute liability statute, the comparative negligence of the worker is generally not a defense. Strict liability applies regardless of whether there was actual exercise of supervision and control over the work performed (Sanatass v. Consolidated investing Company, I O N.Y. 3d 333,887 N.E. 2d 1125 [2008] and Cahill v. Triborough Brldge and Tunnel Authority, 4 N.Y. 3d 35, 823 N.E. 2d 439,790 N.Y.S. 2d 74 [2004] ). Plaintiffs I ] comparatlve negligence Is not a defense to Labor Law §240 [ liability, unless it can be established that the plaintiffs conduct was the sole and proximate cause of the accident (Gallagher v. New York Post, 14 N.Y. 3d 83, 923 N.E. 2d 1120, 896 N.Y.S. 2d 732 [2010]). Labor Law §240[1], is to be construed liberally to accomplish its purpose, however, it is limited to %peciaI hazards involving elevation dlfferentlals ( Ross v. Curtis-Palmer Hydro Electric Company, 81 N.Y. 2d 494, 618 N.E. 2d 82,601 N.Y.S. 2d 49 [I9931 ). Recovery does not extend to harm resulting from routine workplace risks (Runner v. New York Stock Exchange, 12 N.Y. 3d 599, 922 N.E. 2d 865, 895 N.Y.S. 2d 279 [2009]). The plaintiff has the burden of showing that protection was needed from the effects of gravity, that a risk of elevation based injury exists, and that the owner or contractor did not provide adequate safety devices (Broggy v. Rockefeller Group, Inc., 8 N.Y. 3d 675, 870 N.E. 2d 1144, 839 N.Y.S. 2d 714 [2007]). A plaintiffs knowledge that appropriate safety devices were available but not in the vicinity, is not enough for the defendants to meet their burden in a motion for summary judgment. Evidence that plaintiff did not know he was expected to use the safety device for the assigned task, or the lack of direction on how to perform the task utilizing the safety device including a standing order conveyed to the workers directing its use, is a basis to grant the plalntiff summary judgment (Gallagher v. New York Post, 14 N.Y. 3d 83, supra and Tounkara v. Fernicola, 80 A.D. 3d 470,914 N.Y.S. 2d 161 [N.Y.A.D. 1 Dept., 20111). A plaintiff is not the sole proximate cause of hls Injuries where the evidence shows he did not on his own initiative engage In a foolhardy risk but rather relied on the directions of his foreman or supewisor (Harris v. City of New York, 83 A.D. 3d 104, 923, N.Y.S. 2d 2 Dept., (N.Y.A.D. let 20111). To defeat plaintiff s motion for summary judgment pursuant to Labor Law §240[1] the defendants must raise an issue of fact concerning, whether the plaintiff, had 6 [* 9] adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured (Auriemmma v. Biltmore , Dept., Theatre, LLC, 82 A.D. 3d I 917 N.Y.S. 2d 130 [N.Y.A.D. lst 20111 citing to Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y. 3d 35, supra and Gaiiagher v. New York Post, 14 N.Y. 3d 83, supra). Compliance with Occupational Safety and Health Administration (hereinafter referred to as OSHA) Guidelines, where there is no requirement to tie off and the failure to do so results in the plaintiffs injury, does not (John J. Murray defeat a prima facie showing of liability pursuant to Labor Law 9240 [I] v. Arts Center and Theater of Schenectady, inc., 77 A.D. 3d 1155,910 N.Y.S. 2d 187 [N.Y.A.D. 3rdDept., 20101 ). Labor Law 5241161 Labor Law 9241[6] establishes a nondelegable duty of owners and contractors to provide reasonable and adequate protection and safety for construction workers (Padilia v. Frances Schsrvier Housing Development Fund Corporation, 303 A.D. 2d 194, Dept., 758 N.Y.S. 2d 3 [N.Y.A.D. let 20031 citing to Ross v. Curtis-Palmer Hydro Electric Company, 81 N.Y. 2d 494, supra). To establish llablllty the plaintiff is required to specifically plead and prove violations of the Industrial Code regulatlons, which are the proximate cause of the injuries. The Industrial Code section cited must be a posltlve command, and not a reiteration of common law negligence (Buckley v. Columbia Dept. Grammar and Preparatory, 44 A.D. 3d 263, 841, N.Y.S. 2d 249 [N.Y.A.D. lnt 20071 citing to Ross v. Curtis-Palmer Hydro Electric Company, 81 N.Y. 2d 494, supra). Causes of action pursuant to Labor Law §241(6), are subject to valid defenses of contributory negligence and comparative negligence (Ross v. Curtis-Palmer Hydro Electric Company, 81 N.Y. 2d 494, supra). Subcontractors may be liable under Labor Law §241[6] if they are statutory agents with delegated supervision and control over either the work area involved or the work which resulted in plaintiffs injury. Evidence that a subcontractor delegated the requisite supervision and control to another second subcontractor can be sufficient to find that the first subcontractor possessed authority and was liable as the statutory agent of the general contractor (Nascimento v. Bridgehampton Construction Corp., 86 A.D. 3d 189, Dept., 924 N.Y.S. 2d 353 [N.Y.A.D. let 20111). Liability would apply to the first subcontractor as an agent of the general contractor regardless of whether it actually coordinated or supervised the work performed (Weber v. Baccarat, inc., 70 A.D. 3d 487, 896 N.Y.S. 2d 12 [N.Y.A.D. 1 Dept., 20101 ). A subcontractor that qualifies as a statutory agent cannot escape liability by delegating work to another entity (Nascimento v. Bridgehampton Construction Corp., 86 A.D. 3d 189, supra). Plaintiffs in their Verified Bill of Particulars dated September 30, 2008 [Mot. Seq. 004, Exh. 21, claim that the following Industrial Code Sections (12 N.Y.C.R.R.) were I I I I I I violated, 23-1.5, 23-1.7, 23-1.8, 23-1.0, 23-1.1, 23-1.2, 23-1.5, 23-1.6, 23-1.7, 23-1.24, 23-2.1, 23-2.2, 23-2.3, 23-4, 23-5, 23-6, 23-7, and 23-8. The plaintiffs motion papers only I specifically address Industrial code sectionsy23-1.7[b], 23-1.6, 23-2.3[a], 23-2.3[c], 238.1 [fl[2][i], 23-8.1[fl[2][1i], 23-8.1 [fl[5], 23-8.2 [c][3]. 7 [* 10] Section 23-1.7 [b] [l][i] applies to Hazardous Openings, and requires that, Every hazardous openlng into which a person may step or fall shall be guarded by a substantial cover fastened In place or by a safety railing constructed and installed in compliance wlth this Part. A hazardows opening has been defined as large enough for a person to fit into (Messlna v. City of New York, 300 A.D. 2d 121,752 N.Y.S. 2d 608 [N.Y.A.D. lst 20021 and Salazar v. Novalex Contracting Corp., 72 A.D. 3d 418,897 Dept., Dept., N.Y.S. 2d 423 [N.Y.A.D. let 20101). A hazardous openlng requlres there be a fall into an opening on the work surface and not from an edge (Smith v. McClier Corp., 38 A.D. 3d 322,831 N.Y.S. 2d 413 [N.Y.A.D. lot 20071). Defendants claim that a cover was not Dept. needed because free access was required at the location and Christopher Gunn was not applies to areas where working In an area close to the opening. Section 23-1.7 [b] [l][ii] free access is needed and that requires a barrler or safety railing to guard the opening. The defendants have failed to provide sufficient evidence that free access was required in the area, there was deposition testlmony that the openlng exlsted because that part of the decking had not been completed and that it would have been covered if a request applies to situations where employees work close to was made. Section 23-1.7 [b] [l][iii] the edge of such an opening and does not apply to the facts of this case. The plaintiffs Christopher Gunn s entire body do establlsh a claim pursuant to Section 23-1.7 [b] [l][I], fell through the hole in the decking and landed more than twenty feet below. Defendants have raised an issue of fact concerning whether the plaintiff should be consldered to have fallen into the openlng. Plaintiff fell into the hole after being shaken off the beam that pulled him approximately 23 feet from the area he was worklng. Section 23-1.16 pertains to, Safety Belts, Harnesses, Tail Lines and Llfellnes. Plaintiffs claim that Section 23-1.16[b] applies because it requires attachment to a securely anchored lifeline and the defendants never provided him with a llfellne In the area he was working. Plaintiffs met their burden of proof by establishing that he was provided with, and wore, a safety harness with a lanyard and he was not provlded with a lifeline or a means to attach his lanyard to the lifeline. Defendants raise an issue of fact based on the failure to provide the lifeline. Defendants claim that Christopher Gunn was not Instructed to attach his lifeline because such instruction was not necessary under OSHA subpart R. Plaintiffs have not sufficiently met their burden of proof concerning Section 232.3[a][I]. Section 23-2.3[a][l] pertains to, Structural Steel Assembly, it requires that, During the final placing of structural steel members, loads shall not be released from hoisting ropes until such members are securely fastened in place. Structural steel members shall not be forced into place by hoisting machines while any person is so located that he may be injured thereby. The plaintiffs met their inltlal burden of proof claiming that although ropes were not involved in the come along, the deposition testimony of Larry Rissmlller [Mot. Seq. 004, Exh. 16, pp 80-841 establishes the beam was being forced into place and the come along was improperly released. Plaintiffs provide the expert affidavit of Ross McLaren, a rigging engineer with 30 years experience [Mot. Seq. 004, Exh. 221, he claims that it was improper to force the beam into place especially when Mr. Gunn was seated in a vunerable position on top of the a header beam. Plaintiffs also provide the Affidavit of Michael F. RUSSO, professional 8 [* 11] engineer [Mot. Seq. 004, Exh. 231, he states that after the 'kame along was removed, the other workers continued to use pry-bars to finish moving the beam into place. Mr. Russo states, the force of gravity on the load caused the beam to swing in a pendulumlike manner as it approached its connection point. The defendants raised an issue of fact based on their claims that this section does not apply because there were no ropes and the cross-beam was not being placed in its final position. The defendants have also raised an issue of fact based on the deposition testimony of Larry Rissmiller [Mot. Seq. 004, Exh. 16, pp 80-841 in which he states the beam was being forced into place and the come along was released because he believed It was In place. Section 23-2.3[c] is subtitled tag lines, It applies to the use of tag lines when structural steel is being hoisted and directs that they be used to avoid uncontrolled movement. There is deposition testimony that Christopher Gunn used a tag line as required pursuant to section 23-2.3[c], and released it when directed to by Mr. Rissmiller, because the beam appeared to be in place and could not be connected if the line remained in place [Mot. Seq. 004, Exh. 16, pp 83-84]. There remains an issue of fact concerning whether section 23-2.3[c] applies, based on the deposition testimony that the tag line was used until it was determined that the beam was in place. Section 23-8.2 [c][3] is applied in conjunction with Section 23-2.3[c]. Section 238.2 [c][3], applies to loads lifted by mobile cranes, it states that they, ...shall be raised vertically to avoid swinging during hoisting.., also it provides that a tag line shall be used when rotation or swinging may create a hazard. Plaintiffs have not sufficiently met their burden of proof concerning Section 23-8.2 [c][3] because a tag line was used during the hoisting, there remains an issue of fact concerning whether it was prematurely released. Plalntiffs claim Sections 23-8.1[q[2][i] and [9[2][ii] and 23-8.1 [fl[S] apply to the facts of this case. Sections 23-8.1[f1[2][i] and [f J[2][ii], forbid a sudden acceleration or deceleration of the load and contact with any obstruction. The plaintiffs have not met their burden of proof as to Sections 23-8.1[fl[Z][i], [q[2][ii] and 23-8.1[fJ[5].There is insufficient evidence that there was an intentional sudden acceleration or deceleration moving the load, or that contact with an obstruction caused the beam to swing resulting in the accident. Plaintiffs have not sufficiently establlshed that Christopher Gunn had been standing or placed on the load or hook of the mobile crane. Labor Law 6 200 Labor Law Q 200 imposes a common law duty on an owner or contractor to maintain a safe constructlon site. An Implicit precondltion to the common law duty is that the party charged must have authority or exercise direct supervisory control over the activity that resulted in the injury, mere directions as to the time and quality of the work is not enough to impose liability (Esposito v. New York City Industrial Dept., DevelopmentAgency, 305 A.D. 2d 108,760 N.Y.S. 18 [N.Y.A.D. let 20031 affd, I N.Y. 3d 526, 802 N.E. 2d 1080, 770 N.Y.S. 2d 682 [2003] ). Labor Law $200 requires that the plaintiff establish that the defendant had either actual or constructive notice of the 9 [* 12] unsafe condition that caused the accident. The notice must be specific as to the defect or hazardous condition and its location, so that corrective action could have been taken Dept. (Mitchell v. New York Unlv., 12 A.D. 3d 200,784 N.Y.S. 2d 104 [N.Y.A.D. lrt 20041 and Vasquez v. Urbahn Associates, Inc., 79 A.D. 36 493, 918 N.Y.S. 2d 1 [N.Y.A.D. lst Dept., 20101). Pursuant to Labor Law Q 200, a general duty to comply with safety regulations, Including weekly safety meetings with subcontractors and regular walk throughs as well as the ability to stop work for safety reasons is insufficient to impose liablllty. It must be shown that the defendant controlled the manner In which work Is performed Dept. 20081 (Geonie v. OD & P NY Limited, 50 A.D. 3d 444,855 N.Y.S. 2d 495 [N.Y.A.D. lNt and Burkoski v. Structure Tone, Inc., 40 A.D. 3d 378, 836 N.Y.S. 2d 130 [N.Y.A.D. lat Dept. 20071). Responsibility for coordinating and scheduling trades at the workslte does not invest a construction manager with the level of direction and control needed to find them liable for the injury producing work (Colozzo v. National Center Foundation, Inc., 30 A.D. 3d 251, 817 N.Y.S. 2d 256 [N.Y.A.D. lat Dept., 20061. Labor Law 9200 liability cannot be asserted against a defendant based on alleged violations of OSHA which govern employee and employer relations (Delaney v. City of New York, 78 A.D. 3d 540, 911 N.Y.S. 2d 57 [N.Y.A.D. let Dept., 20101). Motion Sequence 003, by third-partylsecond third-party defendant Helmark Steel Inc., for summary Judgment pursuant to CPLR 53212, for an Order dismissing Site Safety, LLC s Third-party Summons and Complaint and those causes of action In the Second-Third Party Summons and Complaint by Are-East River and Turner asserted against Helmark [Mot. 003, Exh. 61, also to enforce Helmark s cross-claims for contractual and common law indemnification against Falcon, is granted only as to the thlrd cause of action in the Second Third-party Action. The third cause of action In the Second Third Party Action s Complaint is severed and dismissed. The remainder of the motion Is denied. Helmark has not sufficiently made out a prima facie case and there remain issues of fact concerning whether Helmark is liable to Site-Safety, LLC, ARE-East and Turner based on contractual and common law theories of indemnification. Helmark entered into an agreement with Turner Construction Inc. [Mot. Seq. 003, Exh. 1I], that includes at paragraph XXIII, an indemnification paragraph with the proper exclusionary language. The contract at Article XXII, states that Helmark agrees to be bound by the Safety, Health and Environmental Policy. The Health and Safety Plan [Mot. Seq. 003, Exh. I O ] includes in section B-9, addltlonal fall protectlon requlrements, and a t sectlon B-I 3 includes a policy statement with requirements concerning steel erection. Helmark may be liable for contractual indemnification even though it was not present at the job slte. There remain issues of fact concerning whether Helmark was an agent to AREEast and Turner under Labor Law §241[6], with delegated supervision and control over either the work area involved or the work performed by Falcon which resulted in plaintiff s injury. There remain issues of fact Concerning vicarious liability and negligence under common law indemnification. 10 [* 13] There also remain Issues of fact concerning whether the Indemnification provision in the purchase order between Helmark and Falcon are valid. Although none of the parties have objected to the claim that plaintiff suffered a grave injury under Worker s Compensation Law 51 1, Falcon claims the indemnificatlon agreement in the purchase order is void pursuant to General Obligations Law 5 5-322.1. The purchase order [Mot. Seq. 003, Exh. 121 contains language that completely indemnifies Helmark for harm based on their negligence. Pursuant to General Obligations Law 5 5-322.1, the purchase order does not have the proper exclusionary language. Helmark claims that at paragraph 14 of the purchase order it states that it is governed by the law of the State of Delaware and the provisions of General Obligations Law 8 5-322.1, do not apply in that state. Helmark has not sufflciently established its prima facie claim that Delaware Law does not apply General Obligations Law Q 5-322.1. In the case cited by Helmark, Menkes v. St. Joseph Church, 2011 WL 1235225 [Del. Super., 20111, the court stated that, Under Delaware Law, a general contractor cannot assign liability for its own wrong doing to a third party, although It Is not citing to General Obligations Law 5 5322.1, the application of Delaware Law has the same result. The Delaware Court went on to flnd that the clause could possibly remain enforceable, if after the offensive language was stricken the remaining obligation would be valid under Delaware law. Applying Delaware Law there remains an issue of fact as to whether the provision can still be enforceable. Falcon did not sufficiently raise an issue of fact on its claim that antisubrogation statutes bar Helmark s cross-claims. Motion sequence 004, the plaintiffs motlon for summary judgment on liability pursuant to Labor Law §240[1] and §241[6], seeks to have this matter set down for a trial on damages. Plaintiffs motion pursuant to Labor Law §240[1], is granted only as to defendants ARE-East and Turner. Plaintiff causes of action against Site-Safety, LLC, are severed and dismissed pursuant to stipulation dated March 5, 2010. The remainder of the plaintiffs motion for summary judgment pursuant to Labor Law 9241[6], is denied. Plaintiffs have met their prima facie case that they are entitled to summary judgment on liability pursuant to Labor Law §240[1]. There are no Issues of fact with respect to the need for protection from the effects of gravity and the existence of an elevated risk. The defendants have failed to sufficiently raise an issue of fact or establish that Christopher Gunn was the sole and proximate cause of his injuries. The defendants claim that under OSHA Subpart R, the plaintiffs ability to tie himself to a lifeline was optional and he chose not to. The deposition testimony of Larry Rissmiller, the raising gang foreman, and plaintiffs supervisor on the date of the accident [Mot. Seq. 004, Exh. 161, states that there was no lifeline that was close enough to tie unto and Mr. Gunn was not directed to tie off [Mot.. Seq. 004, Exh. 16, pp 61-62]. Plalntlff was directed to the header beam and to use the come along by Mr. Rissmiller. Edward Hendrickson, the Iron worker foreman and general foreman employed by Falcon on the date of the accident testified at his deposition that additional safety devices and tie offs were not provided because of compliance with OSHA subpart R regulations [Mot Seq. 004, Exh. 17, pp 22-24]. The plaintiff did not intentionally fail to tie off, he was not directed to do so, and did not have anything to tie off to. Site Safety, LLC has 11 [* 14] a stipulation with the plalntiffs releasing it from liability as to plaintiffs causes of action. Pursuant to Labor Law §240[1], the remalnlng defendants, ARE-East and Turner, are strictly liable to the plaintiffs. Plaintiffs have not sufficiently established a basls for summary Judgmentunder their Labor Law $241 [6] causes of action. The plaintiffs causes of action pertaining to I Industrial Code Sections (12 N.Y.C.R.R.) 23-1.5, 23-1.8, 23-1.IO, 23-1.1, 23-1.12, 23-1.15, 23-1.17, 23-1.24, 23-2.1, 23-2.2, 23-4, 23-5, 23-0, 23-7 and Sectlons 23-8.1 [fJ[2][1] and [fl[2][ii] and 23-8.1[fl[5], are severed and dismissed. The plaintiffs claims as to industrial code sections, 23-1.7[b], 23-1.16, 23-2.3[a], 23-2.3[c] and 23-8.2 [c][3] remain. The remainder of plaintiffs motion for summary judgment pursuant to their Labor Law 9241 [6] causes of action Is denied, there remain issues fact concerning the violations of the remaining industrial code sectlons, and as to defenses of contributory and com parative negIlgence. Motion sequence 005, is the motion by defendant and third-party defendant, Site Safety, LLC, for summary judgment dismissing plaintiffs causes of action pursuant to the March 5, 2010 stipulation and for an Order dismissing ARE-East and Turner s crossclaims for tort contribution, common law and contractual indemnity and breach of contract. Site Safety, LLC, also seeks to have Helmark and Falcon s cross-claims dismissed or upon a dismissal of the causes of action and cross-claims brought by plalntiffs, ARE-East and Turner, to have the Third-party action declared moot. Site Safety, LLC s motion is granted as to the plaintiffs causes of action based on the March 5, 2010 stipulation and those causes of action asserted against It for contractual indemnification on behalf of ARE-East River Science Park, LLC. The action shall continue as to the remaining causes of action. Site Safety, LLC has not sufficiently made out a prima facie case and there remain issues of fact concernlng whether Site Safety is liable to ARE-East and Turner based on common law theories of indemnlflcation and to Turner based on contractual irldemnification. ARE-East and Turner have raised an issue of fact concerning Site Safety, LLC s additional responslbilities and whether it had the authority to direct, supervise and control the plaintiffs work which resulted in his injuries. Malik Harrison, Site Safety, LLC s safety manager at the site on the date of the accident stated at his deposition that he had more duties than at a typical site, including orlentlng workers, insurance walkthroughs and making sure the men wore their personal protective equipment [Mot. Seq. 006, Exh. N, pp 11-13]. Site Safety, LLC, did not annex a copy of the deposition transcript of Malik Harrison to its motion papers and relies instead on his affidavit. The affidavit is insufficient to establish that Mr. Harrison s additional duties dld not include direction and supervision of safety procedures on the date of the accident. Site Safety, LLC, claims that pursuant to their contract with Turner, Site Safety, LLC, was only retained in an advisory capacity as a consultant and was not delegated or assumed Turner s safety duties and obligations as construction manager and contractor at the site [Mot. Seq. 005, Exh.P]. Site Safety, LLC, has not sufflclently met its initial burden of proof entitling it to summary judgment on its claims against Helmark and Falcon for tort contributlon and common law indemnity. There remain 12 [* 15] issues of fact concerning negligence under common law Indemnification and the extent of tort contribution. Motion sequence 006, by defendants and second third-party plaintiffs, ARE-East and Turner, for summary judgment dismissing plaintiffs causes of action pursuant to Labor Law $241[6] and 9200 asserted against them and on their cross-claims and thirdparty claims against Site Safety, LLC and Helmark, is denied. ARE-East and Turner have not sufflclentiy made their prima facie case that they are not liable pursuant to Labor Law 9200 because they did not supervise or control Christopher Gunn s work or that they did not have either actual or constructive notice of the unsafe condition that caused the accident. There remain issues of fact under plaintiffs Labor Law $241[6] causes of action regarding violations of industrial code sections 23-1.7[b], 23-1.16, 23-2.3[a], 23-2.3[c] and 23-8.2 [c][3] and whether they violated the nondelegable duty of owners and contractors to provide reasonable and adequate protection and safety for construction workers. Kevin Balvin, the structural superintendent for Turner on the date of the accident, stated at his deposition that he was present at the site on the date of the accident, that he performed at least four walkthroughs of the slte regularly and that he was aware of an opening of approximately two to three feet in length In the deck which was done by Falcon to provide access to the deck (Mot. Seq. 006, Exh. I, pp. 23, 30-33,43). There remain issues of fact whether ARE-East and Turner had actual knowledge of the dangerous condition or supervised, directed and controlled the means and methods of the work being performed by Falcon at the time of the accident. There also remain issues of fact on ARE-East and Turner s cross-claims and third-party claims against Slte Safety, LLC and Helmark, based on contribution, indemniflcation and liability. Accordingly, it is ORDERED that Motion Sequence 003, third-partylsecond third-party defendant HELMARK STEEL INC. s, motion for summary Judgmentpursuant to CPLR 53212, for an Order dismissing the Third-party Summons and Complaint by SITE SAFETY, LLC, and for dismissal of those causes of action in the Second-Third Party Summons and Complaint by ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY asserted against HELMARK STEEL INC., and to enforce it s cross-claims for contractual and common law indemnification against FALCON STEEL COMPANY, INC. is granted only as to the Third Cause of Action In the Second Third Party Action, which is severed and dismissed. The action shall continue as to the remaining causes of action, and it is further, ORDERED that Motion Sequence 004, plaintiffs motion for summary Judgment on liability pursuant to Labor Law §240[1] and §241[6], seeking to have this matter set down for a trial on damages, is granted only as to plaintiffs causes of action pursuant to Labor Law §240[1] as to defendants ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY. Plaintiffs causes of action against SITE13 [* 16] SAFETY, LLC are severed and dismissed pursuant to stipulation dated March 5, 2010. The action shall continue as to the plalntiffs remaining causes of action, and It is further, ORDERED that Motion Sequence 005, defendant and third-party defendant, SITE SAFETY, LLC s, motion for summary judgment dismissing plaintiffs causes of action pursuant to the March 5, 2010 stipulation; dismissing ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY S cross-claims, and having HELMARK STEEL INC. s and FALCON STEEL COMPANY, INC. scross-claims dismissed or upon a dismissal of the causes of action and cross-claims brought by plaintiffs, ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY, to have the third-party action declared moot, is granted only as to the plaintiffs causes of action based on the March 5, 2010 stipulation and those causes of action asserted against it for contractual indemnification on behalf of ARE-EAST RIVER SCIENCE PARK, LLC. The action shall continue as to the remaining causes of action, and It is further, ORDERED that Motion sequence 006, defendants and second third-party plaintiffs, ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY S, motion for summary Judgment dismissing plaintiffs causes of action pursuant to Labor Law §241[6] and 9200 asserted against them and on their crossclaims and third-party claims against SITE SAFETY, LLC and HELMARK STEEL INC., is denied. The Clerk is to enter judgment accordingly. k M A ~ E J. MENDEZ L J. S. C. 14

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