Finamore v Hardesty & Hanover, LLP

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Finamore v Hardesty & Hanover, LLP 2011 NY Slip Op 33387(U) December 12, 2011 Sup Ct, NY County Docket Number: 112848/2008 Judge: Saliann Scarpulla 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 - NEW YORK COUNTY 1 - - Index Number . 11284812008 INDEX NO. FINAMORE, JOHN MOTION DATE VS. ' H A R D E S N & HANOVER MOTION SEQ. NO. SEQUENCE NUMBER 004 MOTION GAL. NO. - SUMMARY JUDGMENT i Ithis 1 \ .- -- - - - . -- motion tolfor I( - - - - - - -- - - - PAPERS NUWERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits Answering Affidavits Replying Affidavlts Cross-Motion: - ... Exhibits , u Yes c? No cp Upon the foregolng pepers, it is ordered that this motion NEW Y O h K COUNTY CLERKS CjFFlCE Dated: Check one: FINAL DISPOSITION Check if appropriate: a DO NOT POST SUBMIT ORDER/ JUDG. fl REFERENCE SETTLE ORDER/ JUDG. [* 2] Index No.: 1 12848/2008 Submission Date: 08/17/11 IIAKDESTY & IIANOVER, LLP and "JOHN DOE," nainc being fictitious, rcal name being u i h o w n , who acted as inspector for I-TARDESTY& HANOVER, LLP, HAWESTY & HANOVEK, LLP Third-party Plaintiff, i ,3ki 2 IOi? -againstB & G Elevator, Inc., Third-party Defendant. "____r-----____"----------"---------------------------------------- For Plaintiff Toberoff, Tesulcr & Schachet, LLP 330 Seventh Avcnue New York, NY 10001 X For DefendantThird-Party Plaintiff Hardesty & Hanover, LLP Conmell Poley LLP 888 Seventh Avenuc, Suite 3401 New York,'NY 10106 For Third Party Defendant B & G Elevator, Iiic.: Gottlieb Siege1 & Schwartz, LLP 180 East 1 62'Id Street Bronx, NY 1045 1 Papers considercd in review ofthis motion for summary judgment: Notice ofMotion . . . . . . . . . . . . .1 Mem. Of Law in Support of Motion. . . . . . . . . . . . . . . . . . .. 2 Aff in Partial Opposition. . . . . . . 3 Keply A f f . . . . . . . . . . . . . . . . . ., 4 1 [* 3] HON. SALIANN SCARPULLA, J.: In this Labor Law and coininon law action to recover damages for personal injuries, defendantlthird-party plaintiff Hardesty & Hanover, LLP ( Ilardesty ) and thirdparty defendant R & G Elevator, Inc. ( B&G j move for summary judgment pursuant to CPLR 321 2. B&G moves to dismiss plaintiff John Finamore s ( Finamore ) Labor Law cause of action against it and Hardesty moves to dismiss the complaint in its entirety. This action arises froin injuries Finamore, a B&G employec, sustained on August 24, 2007 while working on a project to repair and refurbish a traveler platform of the Verrazano Narrows Bridge (the l roject ). The injury occurred at B&G s worksite in Bayonne, New Jersey. B&G had contractcd with thc Triborough Bridge & Tunnel Authority (TBTA ) to perform construction on the Prqject, and was originally supposed to work on the bridge itself. Howcvcr, B&G relocated the platform to their Rayonne, Ncw Jcrsey yard as that worksite was more convenient. Hardesty contracted with TBTA to provide consulting services on the Project. Under its contract, Hardesty was rcsponsible for providing "comprehensive construction management, supervision, inspection, testing and other services required to administer and manage the project to ensurc that the cost, schedule, quality, safety, and other criteria of thc construction contract wcre met. TRTA s contracts with both Hardesty and B&G included choice of law provisions designating New York law as the contracts governing law. 2 [* 4] In his deposition, Finamorc testified that he was injured while attempting to remove a bolt with a grinder. According to Finamore, the bolt seized up and hit him in the face. Finamore also testified that Hardesty s resident engineer, Shanmugan Subraiiianian ( Subra~manian )had directed him not to usc a torch but that grinder. Finamore statcd that the grinder lacked a guard ovcr the blade and the moving slide handle, which allegedly contributed to his injury. Finamore testified that despite his reporting these dcficiencies to Subramanian, Subramanian dirccted him to continue using thc grinder. Subramanian testified at his deposition that IIardcsty was responsible for comprehcnsivc construction managemenl on TBTA property, including ensuring coiiipliance with relevant safety regulations. However, Hardesty s role was liimitcd to quality assurance at the Bayonnc site. Subrammian testified that Hardesty did not direct R&G s means of construction, but confirmed that he had directed B&G not to usc torches in its construction. Jeffrey Scott ( Scott ), R&G s General Manager, confirmed that Subrainanian was not responsible for supervising the workers and was only at the worksite to inspect completed work. Scott also testified that he, not Subramanian, decidcd which equipment the workers should use at thc Bayonnc site. Hardesty and B&G now move for suininary judgment pursuant to CPLR 3212 dismissing the Labor Law causes of actions against them. They argue that Ncw York Labor Law does not apply to this action because thc accident occurred in New Jersey. 3 [* 5] Hardesty also moves to disiniss the negligcnce cause of action, maintaining that it did not exercise sufficient control over Finamore s worksitc to be liable under common law negligence. T opposition, Finamore withdraws his Labor Law $5 240 and 241 claims, but n maintains that Labor Law cj 200 applies here because New York law governs TBTA s contracts with Hardesty and B&G. Finamore further argucs that Hardesty exercised control over Finamore s worksite, thus, it may be held liablc under coininon law negligence. Discussion A movant seeking suinniary judgmcnt must make aprima,facie showing of entitlement to judgmcnt as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then deliionstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. Ct ofNew York, 49 N.Y.2d 557 (1980). iy Here, BdZG and Hardesty are entitled to sumnaqjudgment on the Labor Law 5200 claims. Where an accident occurs outside New York State and the plaintiflsues in tort, New York courts apply the rules of the jurisdiction where the injury occurred if those rules are conduct-regulating. Padula v. Lilarn Properties Corp., 84 N.Y.2d 5 19, 522 ( I 994). As it is a conduct-regulating statute, Labor Law 8 200 does not apply to 4 [* 6] injuries, such as Finalnore s, that occur outside New York State. See Floriu v. Fisher Dev., Inc., 309 R.D.2d 694, 696 ( lhL Dept. 2003). Finamore argues that Labor Law tj 200 should nevertheless apply here because, under the choice of law provisions in their contracts with TRTA, thc parties agreed that New York law governs. However, the choice of law provisions in the 1BTA contracts with Hardesty and B&G relate to interpretation and application of those contracts, not to tort claims brought by nonparties under Ncw York statutes. In any event, as Finamore was not a party to either of those contracts, their choice of law provisions do not cxtend to the claims he makes in this action. However, there are triable issues of fact that preclude summary judgment on the common law negligence cause of action against Hardesty. Because negligence law is conduct-regulating, New Jersey coininon law governs here. See Murchevka v. DeBartola C npitul P ship, 3 A.D.3d 477,477-78 (2d Dept. 2004);Carvulhov. Toll Bros. & Developers, 143 N.J. 565 (1996). In Cnrvalho v . Toll Brus. & Developers, 143 N.J. 565 (1996), the New Jersey Supreme Court addressed whether ii project engineer owed a duty of care to a subcontractor employee under facts analogous to those here. The plaintiff in Carvulho was an cinployec of a subcontractor hired to do excavation work. After the plaintiff died in a workplace accident, his estate brought a common law negligcnce action against the general contractor and the prqjcct engineer. lJnder its contract with the owncr, the projcct 5 [* 7] engineer was responsible for monitoring the work s progress but not for controlling the construction methods or overseeing worksite safety procedures. Neverthcless, the Court held that the project engineer owed a duty to the plaintiff to avoid the risk of h a m at thc worksite. Curvalho, 143 N.J. at 575. Similarly, it is undisputed that Hardesty was responsible for quality control at the H&G worksite. Hardesty argues that it is not liable because it did not have thc rcquisitc oversight or control over Finamore s work. But Wardesty s quality assurance responsibilities imposed on it a duty to ensure that adequate safety procedures were followcd at the Project worksite even if it did not directly conlrol construction. See Carvulhzo, 143 N.J. at 575 ( Mattcrs of construction-site safety... indirectly on the bear engineer s contractual responsibility for supervising the progress of thc work. ). Further, Pinamore testifjed that Subramanian directly instructed him to use a tool that contributcd to his injury after receiving notice that the tool was defective. Thus, whethcr Hardesty breached its common law duty is an issue of h c t that B jury must resolve. In accordance with the foregoing, it is hereby ORDERED that defendantlthird-party plaintiff Hardesty & Hanover, LLP s and third-party defendant R & G Elevator, Inc. s motions for summaryjudgment are granted vnly to the extent that plaintiff John Finamore s Labor Law claims asserted against Though the Carvulho court did not directly address the issue, it does not appear that the project engineer had a direct contractual relationship with the plaintiff crnployer. 1 [* 8] defendants Hardesty & Hanovcr, T,LP and B & G Elevator, Inc.'s are dismissed and the remaining common law claims are severed and shall continue. This constitutes thc decision and order of the Court. Dated: New York, New York December 1% 20 1 1 ENTEK: 7

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