Manthos v Omni Hous. Dev. LLC

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Manthos v Omni Hous. Dev. LLC 2012 NY Slip Op 32345(U) September 6, 2012 Supreme Court, Suffolk County Docket Number: 38956/2008 Judge: Paul J. Baisley 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 - STATE OF NEW YORK CALENDAR CONTROL PART - SUFFOLK COUNTY PR ES ENT; HON. PAULJ. BAISLEY,JR., J.S.c. ----------------------------------------------------------------)( JAMES A MANTHOS. Plaintiff, -againstOMNI HOUSING DEVELOPMENT LLC, OMNI DEVELOPMENT COMPANY, INC., LlPSKY ENTERPRISES, INC., ROCJ(VrLLE CENTRE HOUSING AUTHORITY, ROCKVILLE CENTRE HOUSING ASSOCIATES, L.P., ROCKVILLE CENTRE HOUSING DEVELOPMENT FUND COMPANY, INC., Defendants. ----------------------------------------------------------------)( INDE)( NO.: 38956/2008 CALENDAR NO.: 201 1013640T MOTION DATE: 6/6/2012 MOTION SEQ. NO.: 002 MOT D; 003 MOT D; 004 MOTD PLAINTIFF'S ATTORNEY: LEAV & STEINBERG, LLP 120 Broadway, 18111 Floor New York, New York 10271 DEFENDANTS' ATTORNEYS: CHURBUCK CALABRIA JONES & MATERAZO, P.c. 43A East Barclay Street Hicksville, New York 11801 LlPSKY ENTERPRISES, INC., Third-Party Plaintiff, -against- LESTER SCHWAB KATZ & DWYERLLP 120 Broadway New York, New York 10271 DESIGN DEVELOPMENT, Third-Party Defendant. ----_._---------------------------------------------------------)( Upon the following pap~rs numbered 1 to 71\ read on this motion ~nd cros~-m()lions for SIII11I11<lrV judgment: Notice of M()lil'll! Order 10 Show Cause and supporting papers~; Notice ofCrnss Motion and SUPPOl1illgpapers 17-39: 40-62 Answering Affidavits and supporting pnpcrs 63-64: 65-66 ; Replying Affidavits and supporting papers 67-68: 69-70: 71-71: 73-7'1: 75-76: 77- n . Othcr __ (and nftcr hcnring i,;ounscl in support and opposed to the motion) it is. OI~DERED that this motion by third party defendant Design Development, LLC s!hJa Design Development (Design Development) seeking an order pursuant to CPLR Section 3212 granting summary judgment dismissing plaintiffs complaint is granted solely to the extent that plaintiff's causes of action claiming violations of Labor Law Sections 240( I) & 241 (6) are hereby dismissed; and it is further ORDEREO that the third party defendant Design Development's unopposed application seeking judgment dismissing claims for common law indemnity and contribution in the third party complaint on the basis that plaintiff James A Manthos (Manthos) has not sustained a grave injury as detined pursuant to Worker's Compensation Law Section 11 is granted; and it is further ORDERED that the motion by plaintiff Manthos seeking an order pursuant to CPLR Sections 3025(b) & 3212: I) granting leave to permit plaintiff to serve a supplemental bill of [* 2] .lome,' ,1. ,l{"miros v OJJ/Ili tllJI/sin,\! !JI.'W/"/}//i<'1I1 LLC 1/1(/1'.\ No, 38956:!IX <'I ai, partIculars; and 2) granting partial summary judgment against the defendants with respect to the isslli~or liabihty as to causes of action based upon dclendants' violation of I,abor I ,<lW Sections 240! I) & 241 (6) is denied: and it is further ORDERED that lhe motion by defendants Omni Housing Development LLC. Gmn! Development Company, Inc. (Omni), Rockville Centre Housing Authority (RCHA). Rockville Centre Housing Associates, LP .. Rockville Centre 11'lousing Develoment Fund Company, Inc. sceking an order pursuant to CPLR Sections 3025(b) granting leave to permit the defendants to file an amended answer to Include a cross-claim against third party defendant Design Development for contractual indemnification and failure to procure insurance is granted. The proposed pleading shall be deemed filed nunc pro tunc to the date or service oflhc defendants' motion. Responsive pleadings, if any, shall blJserved within twenty days ot'scrvicc of a copy ofthis oroer with notice of enlry: and it IS further ORDERED that the defendants' (including defendant Lipsky Enterprises, Inc. (Lipsky)) application for an order pursuant to CPLR Section 3212 granting sUlUmaryjudgment dismissing plaintiffs complaint against the defendants is granted to the extent that plaintiff's causes of action sounding in violations of Labor Law Section 240(1) & 241(6) are hereby dismissed.; and it is further ORDERED that the defendants' application seeking an order pursuant to CPLR Section 3212 granting summary judgment against the third party defendant Design Development with respect to defendants' third party claims for contractual indemnification and failure to procure insurance is denied. On December 7. 2007 plaintiff Manthos sustained injuries while working at a constmction site at premises owned by defendant Rockville Centre Housing Authority (RCHA). The premises consisted of nine apartmenl buildings containing 154 units which provide public housing for local residents. A reconstruction/renovation/rehabilitation project was ongoing at the site in which each building's thlmc structure was totally demolished so that each unit could bc completely reconstructed. Defendant RellA hired delendant Omni LLC to act as the owner's agent and construction manager for the project. Defcndant Omni LLC hired defendant Lipsky as the project's general contractor. Third party defendant Design Development was a carpentry subcontractor hired by Lip~;ky. Plaintiff Manthos. an employee of Design Development. was performing interior fTaming on the :;ccond noar of an apartment in a 20 foot by 30 fOOlopen area, Manthos testified that after naiLng a sole plate (described as a 2 x 4) into the tloor, he slepped back with his left heel into a hole measuring approximately 3 inches by 14 inches, His foot descended between 6-12 inches mtn the holt". The vent hole into which he stepped had been created after removai orheatitlg duciS, PlaintilT claims to have sufrercd serious injuries to his left knee and back as a result of the raiL Thml party defendant Design Development's summary judgment motion seeks an order dismissing tbe claims set forth in plaintiff s complaint and the thIrd pany plainti ITLipsky's claims seeking common law indemnity and contnbution claiming that no viable causes of action are stated in the complaint and that plaintilThas not sustained a "grave injury" as defined pursuant to Worker's Compensation Law Section II. Design Development claims that no valid negligence claims have ·2· [* 3] ./01ll".'..J. ,1/"IiI!III," \' Ollilli / /"usiilg /)eH'iof1ml'NI f..lf' el "I. been <lssertedsince the undisputed evidence shows that the hole where Manthos fell was readily obsc:rvable by any individual working in the area and therefore constitutes an opcn and obvIOus condition for which nonc of the defendants can be found liable. Design Developmcnt also claims that no valid I.abor I,aw claims for violations of Labor I,aw 240(1 )&241 (6) remain viable based upon the deposition testimony which reveals that Manthos was not injured as a result of an e1cvatedrelated risk or as a result of defendants' violation of any relevant section of the Industrial Codc. Finally Design Development argues that Manthos has not sustained a "grave injury" as defined pursuant to Workers Compensation Law Section 11 and therefore plaintilrs cmployer cannot be found liable for contribution or common law indemnification to third parties including third party plainti tTl.ipsky. Plaintiffs cross Illotion seeks an order permitting Manthos to supplement his bill of particulars to include a recitation of the specific New York Industrial Code Sections violated by the defendants. and upon permitting such amendment, granting summary judgment against alt defendant with respect to violations of I.abor Law Sections 240(1) & 241 (6). Plaintiff claims that defendants failed 10 provide adequate safety devices to correct the dangerous condition which existed in the form of a hole in the noor in the area where heating ducts had been removed. Plaintiff claims that the injury occurred as a result of an elcvation/gravity related risk and defendants are therefore strictly liable based upon their failure to provide adequate safety devices. PlaintilTalso argues that the owners and contractors are strictly liable based upon the defendants' violation of Industrial Code Section 023-1. 7(b)( I), claiming that defendants' violations in failing to provide a cover or railing to prevent a worker's exposure to an open hole contributed to cause Manthos' injuries. Defendants cross motion seeks an order granting all defendants (with the cxception of Lipsky) leave to IiIe an amended answer which would include a cross-claim against third party defendant Design Development for contractual indemnification and failure to procure insurance, and that upon such permitting such amendment, granting summary judgment against the Design Development for those claims. Defendants application also seeks an order granting summary judgmenl dismissing plaintiff's complaint. Defendants claim thaI no prejudice will result from the amendment orthl..:ir answer to include cross clallTISagainst Design Development and that summary .judgment is warranted on the eross claims based upon the third party dclcndant's f~lilureto comply with the Lipsky/Design Developmcnt subcontract provisions requiring contractor/owner indemnification and insurance coverage which the subcontractor failed to furnish. Defendants also claim that no viable Labor Law 240(1) & 241(6) violations are stated since the hole Manthos stepped in measured only 3 inches by 14 inches and plaintiffs resultant injuries are therefore neither elevated nor !~ravityrelated risk injuries and are not applicable to "'hazardous opening" injuries sustained as a result oCa violation oCthc New York State Industrial Code section 23-17(b) and its subsections which are intended to protect workers from falling through an opening to a Iloor below, Defendants also argue that piaintiirs colllmon law negligence ciaims must be dismissed since thc record proves that none of the defendants supervised. directed or controlled plaintifrs work cH1d there is no evidence to show that the deCendants had actual or constructive notice of the hole prior to plainliJrs rail. Leave to amend a pleading may be grantcd at any time. including prior to or during trial. absent prejudice or surprise to the npposmg party, unless the proposed amcndment is palpably insufficient or patently devoid of merit (see Galarraga v. Cily (~r ew York, 54 AD3d 308. 863 N , ->- [* 4] Jalll'.'.\' ..1. ,1/i/ilIIWS I' Ollmi /lol/siug /)c'l'do/JlJI('JJ! fJJ' el al. /lidex No. 38956 Wi NYS2d 47 (2nd Dep1.. 2008). Leave to amend is entrusted to the sound discretion of the court (Arcuri nd 1'. kalllos. 7 AD3d 741. 776 NYS2d 895 (2 Dept.. 2004». Where the application is made long altcr the action is certified 1'01' trial. "judicial discretion in allowing such amendments should be discrete. circumspect. prudent and cautious"(Morris v. Queens Long Island Medical Group, I' C", 49 AD3d 827.854 NYS2d 222 (2'wJ ept., 2008»_ Leave to amend a bill of particulars to include allegations D thaI the defendants violated specific industrial code provisions may be properly granted after the note of i~sue has been filed provided that the plaintiff makes a showing of merit and the amendment involves no new laetual allegations. raises no new theories of liability and causes no prejudice to the defendants (see Dowd 1'. ( "ity o( New York. 40 A D3c1908, 837 NYS2d 668 (2nd Dept., 20(7)). Defendants· cross motion seeking an order granting defendants (except defendant Lipsky) leave to serve and file an amended ,mswcr tt) inchldc cross c]nims for contractual indemnification and Llilun: to procure insurance against third party def"endant Design Development must be granted since l110vantshave submitted arguably meritorious claims and since there has been no showing of prej udicc to the third party defendant's ability to prepare a defense to those claims. Ilowcvcr significant issues of fact exist concerning the merits of the defendants' third party cross claims suflicient to deny the defendants' application for an order granting summary judgment against the third pnrty defendant Design Development. With respect to plaintifFs application seeking leave to file an amended bill of particulars, a review of the code provisions recited by the pIaintiffas having been violated by the defendants reveals that none of the regulations cited apply to the incident and plaintiff's resultant injuries. The undisputed facts reveal that plaintiff stepped into a hole described as measuring 3 inches by 14 inches. The hazardous openings code regulation cited by plaintiff as applicable, is intended "to prolect workers from tailing through an opening to the 0001' below and is inapplicable where the hole is too small for a worker to fall through·' (/leather v. NY Times BlIilJing. LLC. 24 Misc.3d 634. 641,877 NYS2d 644, 650 (NY Sup. Ct., 2009) citing Alvia v. Teman Electrical Confracfillg, 287 i\d2.d 421,424,731 NYS2d 462 (2nd Dept., 2001). Under these circumstances plaintiffs motion secking leave to amcnd the bill of particulars must be denied since the proposed Industrial Code violations do not apply to the undisputed facts in this case (see Rice v. City a/New York Board (~j' Fell/Calion, 302 AD2d 578, 755 NYS2d 419 (2tld Dcpt., 2003)). The proponent oj"a summary judgment motion must make a prima hleie showing oj" entitlement to Judgment as a matter of law. tendering sufficient evidence to climll1ate any material issues of tact from the action. To grant summary judgment it must clearly appear that no material and triable Issue of !~lClis presented (Sillman v. l(yJ' CeJ1fwy-Fox Film Corporufiol7. 3 NY2d 395. 165 NYS2d 498 (1957». The moving party has the initial burden of proving elltitlemelH to summary judgment (Winegrael v. N),U Medie:al een/cr. 64 NY2d 85 1.487 NYS2d 316 (1985)). Failure to mak(; such a shuwing r~quircs denial of the motion. regardicss orthe sufiicicncy ortne opposing papers (Winegrad v. NYU Medical eemer. supra.; Friend,' (~(Anilllals \' Associated Fur /vlalll!(acturers. 46 NY2d 1065. 416 NYS2d 790 (1979)). Once such proof has been offered the burden shifts to the opposing party. who. in order to defeat the motion tar summary judgmelH must proffer evidence in admissible form and must "show facts sufficient to require a trial orany issue of fact"' tCPLR Section 3212(b): Zuckerman v. CiIY o(New York. 49 NY2d 557. 427 NYS2d 595 (19f:O)). The opposing party must present facts sufficient to require a trial of any issue or fact hy pro(lucing eVld~nti<Jryproof in admissible form (Joseph P. Day Realty C.'orp. v. Ael'ox()/1 Producfs. -4- [* 5] ./11I111'\' .,J .Hwllhos j' (Jlliil! //ol/siug IJ''I'e/OIJl!1I.'1II r,U' <.'I al liid<.'y "vo. YN56/08 148 AD2d 499, 538 NYS2d 843 (2ndDept., 1(79)) and must assemble, lay bare and reveal his proof in order to establish that the matters set 10rth in his pleadings are real and capable of being established (Cos/I"O v. Liherty Bus Co" 79 AD2d 1014,435 NYS2d 340 (2"dDept., 1981)). SUlYImarY.ludgmcntshall only be granted when there are no issues or material fact and the evidence requires the court to direct a judgment In favor of the movant as a matter of law. In order to establish tort liability the plaintitlmust demonstrate the existence and breach ofa duty owed to him by the defendant (Palka v Edelman, 40 NY2d 781,390 NYS2d 393 (1976); Pa!.lgri!lv, UHf? 2-1-8 339 (] 928); Prosser, "Torls 4'10 Edition Sections 30, 41-42 & 53». lie NY must further demonstrate that defendant's acts or omissions which constituted such breach were a proximate cause of plaintiff's injuries (Sheehan \I. Ci/y oj'lli'ew York, 40 NY2d 496, 387 NYS2d 92 (1976)). P, A landowner ovves a duty to anothcr on his land to keep it in a reasonably safc condition (Basso v. Miller, 40 NY2d 233, 241, 386 NYS2d 564 (1976); Smith v, Taylor, 279 AD2d 566, 719 NYS2d 686 (2n<l cpt., 2(01)). A pm1y who possesses real property either as an owner or a tenant, 15 D under a duty to exercise reasonable care to maintain that property in a safe condition, and this duty includes the undertaking of minimal precautions to protect members of the pub lie from the reasonably foreseeable acts of third persons (I'vlartinez v. Sanloro, 273 AD2d 448, 710 NYS2d 374 (2'''' Dept., 2000); Sadler v. Town o(Harley, 288 AD2d 805, 720 NYS2d 613 (3'd Dept, 2001)). Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises. The existence of one or more of these clements is sufllcient to give rise to a duty of care. Where none is present a party cannot be held liable for injury caused by the defective or dangerous condition on the property (13alsarn II. Delma Engineering Corp., 139 AD2d 292, 296-297, 532 NYS2d 105 (1" Dept., 1988); leave to appeal denied 78 NY2d 783 (l989); Pappalardo v. iVY Health & Racket Club, 279 AD2d 134,718 NYS2d 287 (l'l Dept., 2000»). In a slip and fall case a plaintiff may only recover ',vhen he is able to show that the defendant either created the condition which caused the accident or had actual or constructive notice of the condition (Anderson Ii. Klein Foods, 139 AD2d 904, 527 NYS2d 897 (4111 Dcpt., 1988); affirmed 73 NY;:d 835 (1989), Moss " .INK Capilal, 211 AD2d 769, 621 NYS2d 679 (2"" Dcpt., 1995)). Comtructive notice may be inferred where the alleged defect was visible and apparent for a suITicicnt length of time prior to the accident so as to permit the defendant to discover and remedy it (Fasolino \', Fashion Bug, 77 NY2d 847, 567 NYS2d 640 (1991 )). The protection provided by Labor Law Section 200 codifies the common-law duty ohm owner or general contractor to provide employees \vith a safe placc to work (.Jock v. Fien, 80 NY2d 965,590 NYS2d 878 (1992)). It applies to owners. contractors or thclr agents (Russin v. Louis N. Picciano & Son, 54 NY2d 31 j, 445 NYS2d 127 (j 98 I) who exercised controi or supervision over the work and cither created an allegedly dangerous condition or had actual or constructive notice ufit (Loli1hardi v ,')'(out, 80 NY2d 290, 590 NYS2d 55 (1992); YOllng Ju Kim I'. Herhert Cons/rllelion, 275 AU2d 709, 713 NYS2d 190 (2000»). If the injury allegedly arises not 11'0111dangerous a cOl1Clition the property, but from the method or matenal used by the subcontractor, an llnpliclt at precondition to this duty is that the pa11ycharged with that respons1bility have the authority to control the activity which brought about the injury (Haider v. Davis, 35 AD3d 363, 827 NYSld 179 (2"dDept., 20(6»). -)- [* 6] !II/lies ..I. !\ fUllliI"s \' (Jlllili I{"usiilg 1)"I'c/qJIIII.'1I! IJ(' el ul. {lidex N(). 3S95(j/()!j Based upon the submission of evidence by the parties, substantial Issues of tflct exist concernmg issues surroundmg all the named defendants control and supervision of the work perJ"ormedon the proJect by [he plaintiff and all the named defendants possible negligence in failing to provide a safe workplace sulTicient to require a plenary trial Moreover significant factual que::;tions arc presented concerning whether the 3 inch by 14 inch hole v-,ras pen and obvious as a o matter of law sufficient to defeat the third party defendant's applicatiOiL .Accordingly defendants' cro~s motion and third party defendant's motion each seeking an order granting summary Judgment dismissing plaintilT') common law negligence and Labor Law Section 200 claims must be dented. Labor Law Section 240(]) provides: I. All contractors and owners and their agents, except owners of one and two !~lll1ilv dwcllinps who contract -for but clo not direct or control the work in the '" ., erection, demolition, repairing, altering, painting, cleaning or pointing ora 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 to give proper protection to a person so employed. . An o'vvnerand a contractor have a non-delegable duty to provide requtrcd safety devices to a workman at a building site and wilt be held absolutely liable for a worker's injuries resulting from the breach of that duty (Ross lI. Curtis-Palmer Hydro Electric Company, 81 NY2d 494, 601 NYS2d 49 (1993». The "exceptional protection provided for workers by Labor Law Section 240(1) is aimed at "~;pecial hazards" that arise when the work site either is itself elevated or is positioned below the level where "materials or load (are) hoisted or secured". "Special hazards" do not encompass any and all perils connected with gravity but are limited to such specific gravity-related accidents as tfl.llingfrom a height or being struck by a failing object that was improperly hoisted or inadequately secured (Ross v. CUl"/is-PalmCl" J-~vdro Electric Company, supra.: Rocovich v. Consolidated Edison Company, 78 NY2d 509, 577 NYS2d 219 (1991); Zimmer 1'. Chemung County Puforming Arts, 65 NY:~d 513, 493 NYS2d ] 02 (1985». The legislative purpose behind Labor Law 240(1) is to protect workers by placlllg ultimate responsibility for safety practices where such rcsponsibiilty belongs on the I)wncr and genera! contractor instead of workers who are '\carccly in a position to protect themselves from accidents" (Rocovich v. Consolidated E'dison Company, supra.: Koenig 1'. Patrick Construction Company, 289 NY 313 (1948». However, 111 order to prevail upon a claim pursuant to LaboJrLaw 2400), a plaintiJTmust establish that the stahlte was violated and that this violation was a proximate cause of his injuries Ulland v, }\;fancherian, 66 NY2d 452, 497 NYS2d 880 (1985); ,~!)f"(/glle v. Peckma/1 Malerials Corp., 240 AD2d 392, 658 NYS2cl97 (2nd Dept., ] 997». The facts underlying ho\v plainrilTwas injured are not 111 dispute. Ahhough the plall1tllTwas worKing on the second floor, the injury occurred not as the result of an elevation or gravity related risk, but rather was caused by a sirnple step back into a relatively small (3" by 14") hole left alter the removal of heating ducts. There \vas no possibility that plaintiff could have fallen through the hole to the 11001' below. The st8.tute clearly aims to protect workers from "special hazards" that arise where the work site is either elevated or perils exist J1'omgravity related injuries resulting from lflils 11'0111 heights or falling ohjects. In this case, neither situation exists and no viable cause of action is stated against the defendants based upon a violation of Labor Lmv Section 240( I )(see AIi/ler 1', VVeulen, 7 AD3d 684,777 NYS2d 516 (2nJ Dept., 2004); Avila v. Plaza Construction COlp., 73 ADid 670, 900 NYS2d 378 (2"" Dept., 2010)). -6- [* 7] .I01li,!,'.1. ,1[(11/1110,1·)' OI!l!J! /IOIISllig j)~lAOJlI!II.!1I1 ru'· el III. /11"1'.\ No 3""''J5(j.{!'"'' Lclbor La'vv Section 241(6) provides: All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and udequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the o\vncrs and contractors and then- agents for such work, except owners of one and two family dwellings who contract for but do not din:ct or control the work, shall comply therewith. Labor Law 241 (6) requires O'vvners and contractors, or their agents, to "provide reasonable and adequate protection and saCcty" for workers and to comply with the specific safety rules and regulations promulgated hy the Commissioner of the Deparl'ment of Labor IJnlikc Lahor Len", 200, the duty to comply with the Commissioner's regulations imposed hy Labor Law 241 (6) is nondelegable (see Ross v. CII!"Iis-Polmer Hydro l,,·!ectric Company, supra: Long v. ForesfFell/haher, 55 NY2d 154,448 N'{S2d 132 (1982)). A plaintiff who asserts a viable claim under Labor Law 241 (6) need not show that the defendants exercised supervision or control over the work site, but must demonstrate that the defendants' violation of a specific rule or regulation was a proximate cause of the accident (Seaman v. Bellmore Fire Distric[, 59 AD3d 515, 873 NYS2d 181 (2'''' Dcpt., 2009)). No viable claim 1S stated against the defendants based upon a violation of Labor Law Seclion 241 (6) since no there remains no New York State Industrial Code provision recited by the plaintiff which would provide a legal basis for establishing the defendants liability. Defendants motion seeking an order granting summ.ary judgment dismissing this cause of action must therefore be granted. Finally with respect to the third party defendant Design Development's unopposed application seeking an order dismissing all claims for common Jaw indemnity and contribution set forth in the third party complaint, movant's application must be granted since there is no proof submitted that plal11tifThas sun-cred a "grave injury" (Worker's Compensation Law Section 11). Accordingly these claims are hereby dismissed. Dated: September 6, 2012 JSc. ·7·

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