Cruz-Acosta v 15 Fort Washington Ave. Hous. Dev. Fund Corp.

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Cruz-Acosta v 15 Fort Washington Ave. Hous. Dev. Fund Corp. 2011 NY Slip Op 34018(U) October 26, 2011 Sup Ct, Bronx County Docket Number: 20878/2006 Judge: Robert E. Torres Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Nov 16 2011 Bronx County Cl~rk NEW YORK SUPREME COURT- CoUN1Y OF BJ~ONX PAllT Cw Dilpa1ell . Cl Settle Order 0 SdleduleAppmw Cl Index N ¢. -against- (s- Tbefollowing papen Noticed cm lY' f[1 g/t..-00 h ~o\bf / t .Hon.. c p/,yw~~~ :;) 0 F- TO~J ..e_.J.;-~ Jllllico. t c::, I Y-1 1 to OD 1hiJ motion,_ OD 1be Motim Callllldlr of md dulv submitted ¢No. - ' lAPAI 'NllMlllllt11n NCllice of Molioll - Onter to Show C.- - Exlu1tita llld Aflldavill A I . '2---, 2-, I Am-ma Allidavit aad Exbilri1I ~./. 1 ~ L( I ReplJias Aftldavit md Bxbibill I '. "' ,..o Q ·r ' '--" Af&.hirila aad l!xllibils , ~ II ' Pllldillp - Exlnllit Slip1l ¢rio ¢i(1)- Rdaee's Report - Mlama filed Papen Mananllda of Law Uponthefingoingpapersthia i V' 'i.,1?.1 'f.JS.J , Yh o-h "'-·~~ ~ ~S L...-0' ""°' ~ ~c. ¢. h- J- ~ 1'-..:_ ROBERT E. TORRES JUDGE . ..,.. . """ [* 2] FILED Nov 16 2011 Bronx County CIE;lrk SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF BRONX, PART 29 PRESENT: HONORABLE ROBERT E. TORRES, J.S.C. RUBEN CRUZ-ACOSTA, INDEX NUMBER:20878/2006 Plaintin: -against- Present: HON. ROBERT E. TORRES 15 FORT WASHINGTON AVENUE HOUSING DEVELOPMENT FUND CORPORATION, 14K MANAGEMENT, INC. and EXPO DEVELOPMENT Defendants. 15 FORT WASHING TON A VENUE HOUSING DEVELOPMENT FUND CORPORATION and 14K MANAGEMENT, INC. Third-Party Plaintiffs, -againstSHAMAS CONSTRUCTION CO., !NC., Third-Party Defendant. EXPO DEVELOPMENT CORP., Second Third-Party Plaintiff, -againstSHAMAS CONSTRUCTION CO., INC., Second Third-Party Defendants. In this personal injury action, plaintiff seeks to recover damages for injuries sustained at a construction site accident on September 7, 2006, when he fell from a scaffold. Plaintiff alleges that he was not provided with proper protection to prevent a height-related injury. Defendants 15 FORT WASHINGTON HOUSING DEVELOPMENT (hereinafter "Fort") and 14K MANAGEMENT [* 3] FILED Nov 16 2011 Bronx County Cii;'irk (hereinafter "14K") now move pursuant to CPLR § 3212 for summary judgment on its claims for common-law indemnification and contractual indemnification against defendants EXPO DEVELOPMENT CORP. (hereinafter "EXPO") and SHAMAS CONSTRUCTION CO., INC. (hereinafter "SHAMAS"). Additionally, said defendants move for summary judgment pursuant to C.P.L.R. § 3212 dismissing plaintiffs complaint in its entirety and all cross-claims against it. In response, plaintiff opposes the motion and cross moves for an order pursuant to CPLR § 3212 granting him partial summary judgment on liability as to FORT, 14K, and EXPO. Defendant EXPO opposes both motions and cross-moves for an Order pursuant to CPLR § 3212 dismissing plaintiffs complaint in its entirety and all cross-claims against it, granting EXPO summary judgment on its claims of contractual indemnification against SHAMAS, and dismissing FORT and 14K's First, Second, Third, Fourth, and Filth cross claims. For the purposes of this decision, said motions are hereby consolidated. On September 7, 2006, plaintilTwas performing painting and caulking work on a scaffold (Plaintiffs deposition, pp. 55) located at 15 Fort Washington Avenue, New York, New York (hereinafter "the premises") (Plaintiffs deposition, p. 43). The building is owned by Fort and managed by 14K. EXPO was the general contractor of the building and they, in turn, subcontracted plaintiffs employer, SHAMAS, to perform exterior work at the building. On the date of the accident, plaintiff started working on the 3'0 floor where he painted the wall and put caulking around the windows (Plaintiffs deposition p. 55). Plaintiff was on the scaffold when the accident occurred (Plaintiffs deposition pp.55-56). After completing the work on the 3'" floor, the scaffold needed to be moved so work could be done in a different area (Plaintiffs deposition p. 66). SHAMAS supervised the moving of the scaffold (Plaintiffs deposition, pp. 66, 67). While the scaffold was being moved, plaintiff put his safety harness and his tools onto the scaffold and went to the bathroom (Plaintiffs deposition p. 67). When plaintilTreturned from the bathroom, the scaffold was in the process of being raised to the roof (Plaintiffs deposition p. 67). SHAMAS told plaintiff to "go up lo the roof and wait until the scaffold gets up there and at time it gets up, when it does get up there, go down onto the scaffold and to tie it." (Plaintiffs deposition p. 68). When plaintiff got to the roof, he stepped onto the scaffold that connected to ropes being held by his co-workers and he told his co-workers to grab strong because he was going down (Plaintiffs [* 4] FILED Nov 16 2011 Bronx County Cli;irk deposition p.69). Plaintiff was unable to see his co-workers from the roof and never heard a response from his co-workers after he yelled down to them to "grab on strong" (Plaintiffs deposition p. 73). Plaintiff did not put his safety harness on before stepping on the scaffold (Plaintiffs deposition p. 72). Plaintiff testified he that he fell to the ground from the scaffold (Plaintiffs deposition, p. 80). The action was commenced by the filing of a complaint dated September 15, 2006, commencing an action against FORT. FORT interposed an answer. Subsequently, plaintiff filed a Supplemental Summons and Amended Complaint dated October 12, 2006 adding EXPO as a defendant and Expo served a Verified Answer. Thereafter, FORT filed and served a Third-party complaint while EXPO filed and served a Second third-party complaint. Both of these complaints named SHAMAS as defendant. FORT and 14K Defendants FORT and 14K now move pursuant to CPLR § 3212 for summary judgment on its claims for common-law indemnification and contractual indemnification against defendants EXPO and SHAMAS. Additionally, said defendants move for summary judgment pursuant to C.P.L.R.§ 3212 dismissing plaintiffs complaint in its entirety and all cross-claims against it. In support ofits motion, defendants FORT and l 4K submit a copy of the pleadings; a copy ofplaintiff s affidavit; plaintiffs sworn deposition testimony; plaintiffs co-worker's affidavit; a copy of plaintiffs Verified Bill of Particulars; a copy of contract between FORT and l 4K and Expo; a copy of the contract between Expo and Shamas; copies of third-party complaints; EBT transcript of Josh Koppel; EBT transcript ofCornelis Perniak; EBT transcript of Roberto Morales; EBT transcript of the plaintiff; and the EBT transcript of Mohammed Mushtaq. Specifically, movants herein maintain that its contract with EXPO entitles it to contractual indemnification from EXPO. Additionally, movants argue that EXPO's contract with SHAMAS mandates SHAMAS to indemnify said movants since the indemnification clause is clear and unambiguous and plaintiffs claims arose out of the work of SHAMAS who was hired by EXPO. Movants also argues that it is entitled to common-law indemnification because it did not direct, control, or supervise the manner which plaintiff performed his work. Movants also state that plaintiffs Labor Law §200 and common-law negligence claims should be dismissed because it did not supervise or direct the manner and means by which plaintiff [* 5] FILED Nov 16 2011 Bronx County Clerk did his work nor did it have actual or constructive notice of any condition plaintiff contends caused his accident. Movants also seek to dismiss plaintiffs Labor Law §241(6) claims because plaintiff failed to cite an Industrial Code provision that is both specific and the violation of which caused the accident and he can not base such a claim on regulations that are not part of the Industrial Code. Finally, movants contend that plaintiffs Labor Law §240(1) claim should be dismissed because plaintiffs recalcitrant conduct in refusing to heed directions to wear a safety harness was the sole proximate cause of his injuries. Although plaintiff opposes the instant motion and argues that it must be denied because plaintiff is not a recalcitrant worker since a safety line was not present and not available, he does not oppose dismissal of the plaintiffs Labor Law §200 and common-law negligence claims as against said movants. EXPO opposes the motion and argues that said movants are not entitled to contractual or common law indemnification from EXPO. SHAMAS opposes the instant motion on the ground that Fort and 14K were named as additional insureds under SHAMAS' general liability insurance and, as such, the Anti-Subrogation Rule prohibits their claims for contractual and common law indemnification. Moreover, SHAMAS argues that movants' request for contractual indemnification fail as a matter oflaw as premature; the clauses are ambiguous; and there is no evidence ofactive negligence on behalfofSHAMAS. Lastly, SHAMAS maintains that movants' request for common law indemnification as a matter of law as there is no evidence of active negligence on behalf of SHAMAS and movants have failed to carry their burden of establishing a "grave injury." PLAINTIFF'S MOTION In response, plaintiff opposes Fort's motion and cross moves for an order pursuant to CPLR § 3212 grnnting him partial summary judgment on liability under Labor Law§ 240(1), Labor Law §240(2), and Labor Law §241(6) as to FORT, 14K, and EXPO. In support of his cross-motion, plaintiff submits a copy of the pleadings including the Supplemental Summons and Amended Verified Complaint, Defendants' Amended Answers, Third-party Summons and Complaint and Answer, Second Third-party Summons and Complaint and Answer; EXPO accident report; SHAMAS' accident report; plaintiffs EBT transcripts; OSHA worksheets; an affidavit of Frank Damiani; EBT transcript of Cornelias Perniak; EBT transcript of Josh Koppel; EBT transcript of [* 6] FILED Nov 16 2011 Bronx County CIE;lrk Roberto Morales; the preclusion order of Mohammad Sarwar; EBT transcript of Shams Sa war; EBT transcript ofMohammad Mushtaq; the contract between defendants, 15 Fort and EXPO, and contract between defendant EXPO and Third-Party Defendant/second Third-Party defendant SHAMAS; and a summary judgment decision order by Judge Green. Specifically, plaintiff moves for partial summary judgment on liability on the grounds that he did not refuse to use an available safety device; was not a recalcitrant worker whose actions were the sole cause of his accident since the scaffold failed when an untrained worker released it, and plaintiff was told to access the scaffold after his harness had been raised on the scaffold in his absence so that it was not available to him; the collapse of the scaffold and the failure to properly guard said scaffold whether a safety line was available or not. Notably, plaintiff does not oppose dismissal of the Labor Law §200 and common law negligence claims as against defendants Fort and 14K. Additionally, plaintiff takes no position regarding cross-claims between defendants/third-party defendants: As to EXPO, plaintiff argues it is not entitled to summary dismissal of the Labor Law §200 and common law negligence claims because it was responsible for coordinating and supervising the work at the site. Fort and 14K oppose this motion and argue that it should be denied because plaintiff was recalcitrant in declining to wear a safety harness which was the proximate cause of his injury. Additionally, Fort and 14K maintain that there is no evidence that the alleged absence of a side or front rail were the proximate cause of plaintiffs injuries and the acts and omissions of plaintiff constitute intervening causes warranting the denial of the instant motion. EXPO opposes the instant motion on the ground that plaintiff failed to establish a prima facie entitlement to judgment by submitting proof that is inadmissible. Specifically, EXPO argues that the mini-transcript attached to plaintiffs attorney's affirmation is unsigned and does not contain a certification by the stenographer that the transcript was accurate. Moreover, EXPO also argues that an incident report filed by Gary Gardine from EXPO; the unsigned C-2; and uncertified and redacted records from OSHA submitted by the plaintiff are not in admissible form and insufficient to establish prima facie entitlement to summary judgment. Additionally, EXPO contends that numerous questions of fact mandating the denial of the motion. SHAMAS opposes plaintiffs motion on the ground that plaintiff failed to establish a prima facie case under the Labor Law § 240(1) because any alleged violation of the statute was not the [* 7] FILED Nov 16 2011 Bronx County Cli;lrk proximate cause of plaintiffs accident. Additionally, SHAMAS argues that plaintiffs Labor Law § 241 (6) claim also fails as a matter of law because plaintiff can not prove the applicability of a specific Industrial Code violation. EXPO's MOTION Defendant EXPO opposes both motions and cross-moves for an Order pursuant to CPLR § 3212 dismissing plaintiffs complaint in its entirety and all cross-claims against it, granting EXPO summary judgment on its claims of contractual indemnification against SHAMAS, and dismissing FORT and 14K's First, Second, Third, Fourth, and Fifth cross claims. In support of its cross- motion, EXPO submits a copy of its Verified Answer to the Amended Complaint by its predecessor counsel; a copy of the substitution of Attorney; and an affidavit of its president, Christopher Ryan. Movant herein argues that plaintiffs complaint must be dismissed because plaintiff can not sustain his claims pursuant to Labor Law§§§ 200, 240, 241(6). Specifically EXPO argues that there is no evidence that it was negligent. EXPO contends that plaintiffs Labor Law § 241 (6) claim must be dismissed because plaintiff can not prove the applicability of a specific industrial code violation and plaintiffs Labor Law § 240 also fail because any alleged violation of this statute was not the proximate cause of plaintiffs accident. EXPO also argues that Fort and 14K are not entitled to contractual or common law indemnification from EXPO. EXPO maintains that l 4K has no standing to seek contractual indemnification because it was not a party to the contract between Fort and EXPO. Additionally, EXPO argues that the right of indemnification is limited by the terms of the contract between the parties in that it is only triggered if EXPO is found negligent. EXPO states that Fort's failure to come forward with any evidence on which a claim of negligence against EXPO can be based is fatal to Fort's summary judgment motion and the viability of Fort's First, Second, Third, and Fourth cross claims. Finally, EXPO also seeks dismissal of Fort's Fifth cross claim which seeks recovery for breach of contract upon an alleged failure to procure insurance in favor of Fort. EXPO maintains that the terms of the contract do not include a requirement that EXPO procure insurance on behalf of any entity other than EXPO. EXPO contends that it is entitled to summary judgment on its claims for Indemnification, Contribution, and defense expenses from SHAMAS on the grounds that the contract between EXPO and SHAMAS provides for said relief. [* 8] FILED Nov 16 2011 Bronx County Ch:irk Fort and 14K oppose the instant motion and contend that it must be denied because EXPO failed to make a prima facie showing of entitlement to summary judgment. Plaintiff opposes EXPO's motion as meritless. SHAMAS opposes the instant motion on the ground that EXPO was named as an additional insured under SHAMAS' general liability insurance and, as such, the Anti-Subrogation Rule prohibits EXPO's claim for contractual and common law indemnification. Moreover, SHAMAS argues that EXPO's request for contractual indemnification fails as a matter oflaw as premature; the clauses are ambiguous; and there is no evidence ofactive negligence on behalf of SHAMAS. Lastly, SHAMAS maintains that EXPO's request for common law indemnification as a matter of law as there is no evidence of active negligence on behalfofSHAMAS and EXPO have failed to carry their burden of establishing a "grave injury." The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See, Alvarez v. Pros,,ect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City o(New York, 49 NY2d 557, 562 (1980). The failure to make such a showing requires denial of the motion, irrespective of the sufficiency of the opposing papers. See. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once the moving party has established its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial. See, Zuckerman v. City o(New York, supra, 49 NY2d at 562. When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. See Makaj v. Metro. Trans. Auth., l 8 AD3d 625, 626 (2d Dep't 2005). Labor Law § 240( 1) provides in relevant part: All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control th_e work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. [* 9] FILED Nov 16 2011 Bronx County Clerk To prevail on a cause of action pursuant to Labor Law§ 240(1), a plaintiff must establish a violation of the statute and that the violation was a proximate cause of his or her injuries. See, Blake v. NeiJ!hborhood Haus. Servs. of N. Y City, l NY3d 280, 289 (2003). Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence ofa hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267 (2001). "[A] plaintiff must also establish that the absence of a protective device, or the presence of a defective one, of the type enumerated in the statute, was a proximate cause of the injuries alleged." Buckley v. Columbia Grammar & Prepalorv, 44 AD3d 263, 268-69 (I st Dep't 2007). Even viewing plaintiffs position in the light most favorable to him, plaintiff does not establish a scenario where entitlement to summary judgment can be granted. Based on the record the Court finds as follows: Plaintiff concedes that his plaintiffs Labor Law §200 and common-law negligence claims do not stand as it relates to the owner herein. Accordingly, the branch of Fort's motion seeking dismissal of plaintiffs Labor Law §200 and common-law negligence claims is hereby granted. Court also finds that with regards to all the remaining motions, the parties have failed to meet their burden in establishing a prima facie entitlement to summary judgment. As such, said motions are hereby denied. This constitutes the decision and order of this Court. Dated: October 26, 2011 Hon. Robert E. Torres ROBERT E. TORRi' JUDGE /

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