Pantelis v Skanska

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Pantelis v Skanska 2012 NY Slip Op 33000(U) November 21, 2012 Supreme Court, New York County Docket Number: 401598/2009 Judge: Michael D. Stallman 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. SCANNEDON 1211912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justice Justice Index Number : 40159812009 INDEX NO. PANTELIS, MIKE VS . KOCH SKANSKA h 401598109 8/23/12 MOTION DATE MOTION SEQ. NO. SEQUENCE NUMBER : 003 SUMMARY JUDGMENT .- ... - ..... a03 NNEL (And a third-party action). 19 The following papers, numbered 1 to were read on this motion and cross motions for summary judgment - Exhibits A - 0 Notice of Cross Motion-Affirmation - Exhibits 1-2 [Affidavits] I No(s). I No(s). I No(s). I No(s). Notice of Motion; Affirmation Notice of Cross Motion-Affirmation - Exhibits A-C Affirmation (in opposition to plaintiff's cross motion and reply to plaintiff's opposition) - Exhibit A I No(s). I No(s)* I No(s). INd5)- Replying Affirmation (in response to partial opposition) Replying Affirmation - Exhibits 3-4, 5 [Affidavit] Supplemental Affirmation Supplemental Affirmation; Supplemental Affirmation 1; 2 3-6 7-8 9 10 11-12 13 14: 15 Letter; Further Supplemental Affirmation I. Check one: ......................... 2. Check if appropriate: ............................... .& -&.! A..L &n rr] .......... M O T I O ~ I S : 3. Check if appropriate: ................................................ 1-1 CASE DISPOSED GRANTED DENIED 1 1 SETTLE ORDER 1 7 /k GRANTED IN PART ,- ,-- l-1 OTHER SUBMIT ORDER I.-- I DO NOT POST !T 1 FIDUCIARY APPOINTMENT i 1 REFERENCE [* 2] Plaintiff, -againstIndex N o . KOCH SKANSKA a n d TRIBOROUGH B R I D G E AND TUNNEL A U T H O R I T Y , -___--___-____- __ 401598/09 Defendants. ______________- X Third-party Plaintiffs, -against- F LE D Third-party Index o . 590602/09 This action concerns a workplace accident of May 2 8 , 2008, when plaintiff, a painter-sandblaster then employed by third-party defendant Liberty Maintenance, Inc. (Liberty), fell from an allegedly unsecured scaffold during his work on the Triborough Bridge-Wards Island Viaduct. In this motion sequence number 003, defendants Koch Skanska (Koch) and the Triborough Bridge and Tunnel Authority ( T B T A ; together, defendants) move, pursuant to C P L R 3212, for summary judgment dismissing t h e complaint, and f o r summary judgment on their third-party claim a g a i n s t Liberty for contractual indemnification. 1 L i b e r t y cross- [* 3] moves for summary judgment dismissing the complaint against defendants. Plaintiff cross-moves, pursuant to CPLR 3 2 1 2 , for summary judgment in his favor on his claim pursuant to Labor Law § 240 (1). BACKGROUND Plaintiff alleges t h a t he was working on a platform when he fell approximately 10 feet and was injured. He contends that he fell because there was no overhead s a f e t y line from w h i c h he could tie o f f , and because the planking he was standing on was unsecured. Defendants and Liberty assert that plaintiff chose n o t to tie off on the safety line and that t h e planks on the platform were properly secured, i.e., that plaintiff was the sole proximate cause of his accident. The Photographs The existence and admissibility of photographic evidence have been the subject of several court orders and the deposition of plaintiff on May 21, 2012. Of particular import are three photographs (A, B and C [Demetri 6/25/12 Supp. Affirm., Ex. Cl) of the inside of the containment a r e a which may, or may n o t , show whether there was a safety line present and whether the planks in the platform were properly secured. A photograph is generally admissible as a depiction of a fact in issue upon proof of its accuracy by the photographer or upon testimony of one with personal knowledge that the photograph 2 [* 4] accurately represents that which it purports to depict" ( C o r s i v [ 2 d Dept 20081). Town of B e d f o r d , 58 A D 3 d 2 2 5 , 2 2 8 - 2 2 9 "The criteria for the use of photographs t o show a defect [ a r e ] that t h e y be taken reasonably close to the time of t h e accident a n d that the condition at the time of the accident be substantially . as shown in the photographs . . " (Melendez v N e w York City T r . Auth., 196 A D 2 d 460, 461 [lst Dept 19931). "[P]hotographs [are] properly authenticated by testimony that they f a i r l y and accurately represent[] the condition of the [accident site] on the date of t h e accident'' (Diakovasilis v B r i g h t 265 AD2d 294, 294 [2d Dept 19991). & S u n n y Corp., "[Ulnauthenticated photographs [do] not constitute evidentiary proof in admissible form so as t o raise a triable issue of f a c t . . . " ( C h a r l i p v C i t y of New Y o r k , 2 4 9 AD2d 4 3 2 , 433 [2d Dept 19981). "[Plhotographs are of no value unless they substantially depict the scene at the time of the accident" (Kaplan v Einy, 209 AD2d 248, 251 [lst Dept 19941, citing Melendez, 196 AD2d at 4 6 1 ) . Here, plaintiff was not exactly s u r e who t o o k t h e photographs ("I think it was Vladimir [ a n o t h e r sandblaster] " [Demetri 6 / 2 5 / 1 2 S u p p . Affirm., Ex. B, Plaintiff's 5/21/12 Depo. at lo]), he was not present when the photographs were t a k e n (id. at 111, and he was unable to tell exactly when t h e photographs were taken ( " [ I l t have to be b e f o r e my accidenl." 531; "It could be a week, could be a few days. 3 I [id. at 1.1, 1.9, I don't remember [* 5] * exactly" [id. at 211). Plaintiff identified photograph A as depicting "the way the area where [he was] working l o o k e d right before [his] accident" (id. at 7-8). the area looked right before you fell? "[Is] ,this exactly the way Yes, ma'am'' (id. at LO). "[Does] photograph A show[] where you were standing r i g h t before you fell? ... Yes. It does'' (id. at 15). Plaintiff also testified that the b o a r d s in the picture were not tied (id. at 9, 51). However, plaintiff testified that photograph B does not "show the area where [plaintiff] was standing right before [his] accident'' (id. at 23). (id. at 2 5 ) . Photograph B shows a "[dlifferent p l a c e " Photograph C shows "the same area of the bridge where [his] accident took place" (id. at 27), but plaintiff could not tell from looking at photograph C where he was right before his accident (id. at 27). Of the three photographs, p h o t o g r a p h A b e s t shows where plaintiff's accident took place (id. at 29). The C o u r t finds that, even if photograph A were taken one week before the accident, rather than just a few d a y s , i t was s t i l l taken reasonably c l o s e t o the time of t h e accident. The C o u r t concludes that of the three photographs at issue, only photograph A has been a u t h e n t i c a t e d and is admissible in e v i d e n c e . In addition, the Court reiterates the p a r t of its April. 17, 2012 order that stated: "However, Liberty is not precluded, 4 [* 6] ej.ther on a motion for summary judgment or at trial, from offering testimony from witnesses as to their observations of the work site, so long as such testimony is based on each witness's review of any photographs n o t previously e x c h a n g e d during discovery. " P l a i n t i f f ' s Expert Although plaintiff's expert's affidavit was untimely submitted, the Court will consider it in the absence of any wilfulness of prejudice (see e . g . Baulieu v Ardsley ASSOC., L.P,, 283 A D 2 d 256, 256 [lst Dept 20013). However, the C o u r t finds that the expert's affidavit is little more than a paraphrase of the various Industrial Code provisions allegedly violated and plaintiff's other allegations. It ignores the testimony of defendants' and L i b e r t y ' s deponents, and m a k e s assertions based on photographs which are not identified. The sum total is completely conclusory, and thus shall have no bearing on the determination of this matter. L a b o r Law 5 200 and Common-Law Negligence Labor Law 5 200 (1) provides, in relevant part: All p l a c e s to which this chapter appLies shall be so constructed, equipped, arranged, operated and conducted as to provi.de reasonable and adequate protection to the lives, health and safety of a l l p e r s o n s employed therein or 1awfull.y E requenting such 5 [* 7] places. All machinery, equipment, and devices in such places shall be so placed, o p e r a t e d , guarded, a n d lighted as to provi.de reasonable and adequate protection to all such persons. T h e board may m a k e rules to carry into effect the provisions of this section. L a b o r Law § 200 codifies the common-law duty to maintain a safe work s i t e ( V e n t i r n i g l i a v Thatch, Ripley LLC, & Co., 96 A D 3 d 1043, 1046 [2d Dept 20121). There a r e two distinct standards applicable to section 200 cases, depending on the kind of situation involved: whether the injuries resulted from a dangerous condition (see e.g. Bridges v Wyandanch C o m m u n i t y Dev. Gorp. , 6 6 A D 3 d 938, 940 [Zd Dept 20091), or methods by which the work was done. from the means and This case involves the means and methods by which the work was done (see e . g . Hughes v T i s h m a n C o n s t r . Corp., 40 AD3d 305, 306 [lst Dep t 20071). Supervision a n d control are preconditions to liability under Labor Law 5 200 when the accident arises from -the contractor s means and methods of performing the work. In other words, the party against whom liability is sought must have the authority to control the activity bringing about the injury to enable i. t .to avoid or c0rrec.t an unsafe condition [internal quotation m a r k s and citation omitted] ( G r i f f i n v C l i n t o n Green S., LLC, 98 A D 3 d 41, 48 [lst Dept 20121) a A defendant has the authority to supervise or control the work f o r purposes of L a b o r Law 5 200 when that defendant bears the responsibility f o r the 6 [* 8] manner in which the work is performed [citation omitted] ( S c h w i n d v Me1 Lany C o n s t r . Mgt. C o r p . , 95 AD3d 1196, 1198 r 2 d Dept 20123 ) . TBTA is the owner of the Triborough Bridge, a n d Koch was the general contractor for the project that included the sandblasting a n d painting of the bridge and viaduct. No one from either defendant told plaintiff where or how to do his j o b , neither defendant provided plaintiff with tools or safety equipment, and neither defendant entered the containment area (Ostrover 9/9/11 Affirm., Ex. G, Plaintiff s 2/22/1.0 Depo. , at 113-116). John Pouso, Koch s safety director, was basically in charge of safety for Koch s employees (Ostrover 9/9/11 Affirm., Ex. H, Pouso Depo., at 17-18). His inspections of scaffolds were limited to Koch s scaffolds (id. at 58-60), and Koch employees did not enter the containment areas or inspect L i b e r t y s scaffolds once they were set up (id. at 60-64). In addition, POUSO never saw a TBTA site inspector enter the containment area (id. at 8 3 ) . Daniel Papa was the TBTA s construction project manager. Papa himself never went inside a containment area for the purpose of making an inspection (Ostrover 9/9/11 Affirm., Ex. I, Papa Depo., at 68) but it was not Koch s employees responsibility to m a k e sure that Liberty s workers had p r o p e r anchorage points (id. at 70). Papa did nothing to ensure t h a t 7 - [* 9] .. .. . Liberty s workers had safety cables overhead, or that the scaffolding was secure, or that Liberty s workers w e r e u s i n g their personal protective equipment within the containment area (id. at 72). Joshua Bowley was Liberty s health and safety officer, with the responsibility of overall j o b site s a f e t y compliance (Ostrover 9/9/11 Affirm., Ex. J, Bowley Depo., at 10). His supervisor f o r the project was Dim0 Kalikatzaros (Kalikatzaros) (id. at 25). It was Kalikatzaros who would tell the Liberty workers where to work each day (id. at 30). Liberty provided its workers with their s a f e t y equipment (id. at 43-44). As Liberty s health and safety officer, it was Bowley s responsibility to ensure that scaffolding was secure and that Liberty s workers had a proper place to tie off (id. at 155). In May 2008, no one from defendants told plaintiff where or how to do his job, provided him with any tools or equipment for his j o b , or supervised his work ( i d . at 84-85). Liberty was responsible f o r the way in which plaintiff did his work (id. at 86). Kalikatzaros was Liberty s foreman and supervisor for, among other things, plaintiff s blasting crew (Ostrover 9/9/11 Affirm., Ex. K, Kalikatzaros Depo., at 15, 17, 94). A c c o r d i n g to Kalikatzaros, no one from defendants entered i n t o the containment area, provided plaintiff with tools or safety equipment, told plaintiff where or how to do his job (id. at 45-47), or 8 [* 10] supervised him (id. at 86-87) . Kalikatzaros, however, noticed that, at t h e time of h i s accident, plaintiff was wearing his safety harness (id. at 41, 58) and was tied off to the safety cable (id. at 58; 54-55 [there was a safety cable inside the containment area, and while Kalikatzaros was inside the containment area, he saw plaintiff tied off]). Liberty's blasters, including plaintiff, s e t up the planking inside the containment area at the beginning of the day of the accident (id. at 49-50; 53-54, 90-91, 96 [plaintiff attached h i s planking to two c a b l e s with ropes]; 97-98 [plaintiff himself s e t up the plank he was working on on two cables]). Kalikatzaros i n s p e c t e d t h e planking (id. at: 51); no one from defendants had anything to do with setting up or inspecting t h e planking (id. at 59-60). A f t e r t h e accident, Kalikatzaros again inspected the plank, and everything was the way it was supposed to be: these were two cables under the plank, and they were secured to the plank with two ropes, the planking was tight and s e c u r e , and the s a ¬ e t y cable was present above (id. at 167-169; 79-80 [everything was in place, but Kalikatzaros did not see plaintiff's lanyard]). George Manolakos was a Liberty journeyman painter and supervisor (Ostrover 9/9/11 Affirm., Ex. L, Manolakos Depo., at 7-10; Kalikatzaros Depo., at 44). According to Manolakos, Kalikatzaros told plaintiff what to do each d a y , and Liberty provided plaintiff with tools and safety equipment (Manolakos 9 [* 11] Depo., at 16-20). P l a i n t i f f himself set up the planking he was standing on at the time of the accident (id. at 78-79). Neither defendant was responsible f o r inspecting the planks in the containment area, and no one from either defendant entered the containment area prior to or on t h e day of t h e accident (id. at 79-80, 40). As this evidence makes clea1, neither defendant had the authority to supervise or control plaintiff s work, nor had performed his work. Accordingly, the parts of defendants motion and Liberty s cross motion which seek summary judgment dismissing plaintiff s Labor Law 5 200 and common-law negligence claims are granted. L a b o r Law S 2 4 0 (1) Labor Law 5 240 (1) provides, in pertinent part: All contractors and owners and their agents . . . 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 f o r the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, b l o c k s , 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. L,abor Law § 240 (I) provides exceptional protection for workers against the special hazards that ar,i.se when either 10 [* 12] where materials or load are being hoisted or secured [internal. quotation marks and citation omitted] Union Free S c h o o l D i s t . , ( J m i n d a r v Uniondale 90 A D 3 d 612, 615 [2d Dept 20111) * The statute imposes absolute liability on building owners and contractors whose failure to \provide p r o p e r protection to workers employed on a construction site proximately causes i n j u r y to a worker (Wilinski v 334 E . 92nd Hous. Dev. Fund Corp., 18 N Y 3 d 1, 7 [2011] quoting Misseritti v M a r k IV C o n s t r . , Co., 86 N Y 2 d 487, 490 [ 1 9 9 5 ] ) . In order [ t l o establish liability on a Labor Law 5 240 (1) c a u s e of a c t i o n , a plaintiff must demonstrate that the s t a t u t e was violated and that t h e violation was a proximate cause of his or her injuries (Hesrera v Union Mech. of NY C o r p . , 80 A D 3 d 564, 564-565 [2d Dept 2 0 1 1 1 ) . However, where a plaintiff s own actions are the sole proximate cause of the accident, there c a n be no liability [under section 240 (a)] ( C a h i l l v Triborough B r i d g e & Tunnel A u t h . , 4 NY3d 35, 3 9 [ 2 0 0 4 ] ; see also P a z v C i t y of New Y o r k , 8 5 AD3d 519, 519 [lst Dept 20111 [ Specifically, if adequate s a f e t y devices are provided and t h e worker either chooses for no good reason not to u s e them, or misuses them, then liability u n d e r section 240 (1) does not attach ] ) . The evidence discloses t h e following: About a week before the accident, L i b e r t y s rigging crew installed t h e steel safety c a b l e i . n s i d c the c o n t a i n m e n t [* 13] area, and the safety cable was available to p l a i n t i f f to tie off on, about- five feet above the plank on which plaintiff was standing (Kalikatzaros Depo., at 126-127; Manolakos Depo. , at-, 3 7 3 8 , 76, 109-110; but see Plaintiff's Depo., at 71 [plaintiff was not tied off at the time of the accident because "There was no cable to tie o f f " ; however, on the same p a g e , plaintiff also a t t e s t e d that he was not wearing a harness, and a little later, he testified that he left h i s harness and lanyard in the trailer (id. at 89-90)]). The wooden planks u s e d by Liberty's blasters were set up by the blasters, including plaintiff, who were also responsible for inspecting and securing them b e f o r e working. Rowley, Liberty's health and s a f e t y o f f i c e r , also i n s p e c t e d the p i c k s c a f f o l d system every day (Plaintiff's Depo., at 58-59, 70, 255; Kalikatzaros Depo., at 49; Bowley Depo., at 10, 90, 132, 155). Kalikatzaros was also responsible f o r inspecting the wooden planking, ropes around the planks, ties, supporting cables and safety cables before plaintiff started working (Kalikatzaros Depo., at 51, 114-119). Before the accident, Kalikatzaros and Manolakos checked each plank inside the containment a r e a f o r s a f e t y (Manolakos Depo., at 121-123)- Mariusz Zapisek was a Liberty journeyman painter. He testified that the p l a n k s inside the contai.riment a r e a were tied off to the cable with rope at each end, a n d Z a p i s c k c o u l d reach 12 [* 14] t h e s a f e t y c a b l e t o t i e o f f t o when h e was s t a n d i n g on the p l a n k . When t h e work was p r o g r e s s i n g , t h e p l a n k s were a l w a y s t i - e d down (Zeipisek Depo., a t 3 7 - 3 8 , 42, 100-101). P l a i n t ' i f f s e t up h i s own p l a n k i n g o n t h e day of t h e a c c i d e n t ( K a l i k a t z a r o s D e p o . , a t 5 0 ; M a n o l a k o s Depo., a t 7 8 - 7 9 ) . H e a t t a c h e d t h e p l a n k t o t w o cables, t h e n s e c u r e d t h e p l a n k t o c a b l e s w i t h two r o p e s ( K a l i k a t z a r o s Depo., a t 5 3 - 5 4 , 90-91, 95- 99) * B e f o r e t h e a c c i d e n t , K a l i k a t z a r o s saw p l a i n t i f f t i e d off ( K a l i k a t z a r o s Depo., a t 54, 1 2 5 ) . After the accident, Manolakos saw t h a t p l a i n t i f f ' s p l a n k was t i e d o n t o s u p p o r t c a b l e s , and t h a t p l a i n t i f f was w e a r i n g h i s harness (Manolakos Depo., a t 136). After t h e a c c i d e n t , K a l i k a t z a r o s a n d Manolakos went i n t o t h e c o n t a i n m e n t a r e a t o inspect t h e a r e a w h e r e p l a i n t i f f had been working. They f o u n d that t h e p l a n k was f i n e , s a f e , s e c u r e a n d t i g h t l y t i e d w i t h r o p e on e a c h s i d e t o t h e support c a b l e s , a n d t h a t the s a f e t y c a b l e a b o v e was s t i l l i n place ( K a l i k a t z a r o s Depo., a t 7 9 - 8 0 , 167-169; Manolakos Depo., at 68-69, 1 4 1 - 1 4 4 ) In a d d i t i o n , a f t e r t h e a c c i d e n t , K a l i k a t z a r o s t o l d Zapisek t o f i n i s h p l a i n t i f f ' s job. Zapisek checked p l a i n t i f f ' s p l a n k t o m a k e s u r e i t was s a f e b y shaking it. He s a w t h a t the ropes on b o t h ends of t h e p l a n k and t h e p l a n k itself were s e c u r e . Zapisek worked o n p l a i n t i f f ' s plank, h e t i e d off. 13 When The s a f e t y [* 15] line was above him (Zapisek Depo., at 46-47, 145-146, 3.51). Within minutes after the accident, Kalikatzaros saw plaintiff outside the containment area and p l a i n t i f f wearing a safety harness. was not However, Manolakos had already removed plaintiff s coverall, harness and everything a f t e r the accident ( K a l i k a t z a r o s Depo., at 84-85, 157). The May 29, 2008 accident form (Ostrover 9/9/11 Affirm., Ex. N) contains the following entries: Describe the incident: Employee alleges that he stepped onto the work scaffold and t h e s c a f f o l d went down causing him to fall. The employee allegedly f e l l on to the support c a b l e s for the platform and then landed on the metal d e c k platform. Describe any contributing factors which may have caused the incident: l a c k of awareness to surrounding work area; Not wearing fall protection. Additional notes: Employee was not wearing his fall protection equipment at the time of the incident. The employee has reviewed this report and agrees with its contents. /signed/ M i k e Pantelis (see also B o w l e y Depo., at 82-83 [Bowley wrote down in the accident report what Pantelis dictated to him]). In light of the conflicting evidence presented above, the pacts of defendants , Liberty s and plaintiff s motion and cross motions which seek summary judgment on p1.aintiff s Labor Law 5 240 (1) claim must be denied. Issues of fact exist as to whether plaintiff himself was the sole proximate cause of his 14 [* 16] accident * Labor Law § 241 (6) provides, in relevant part: All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with thc following requirements: *** 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, s h o r e d , equipped, guarded, arranged, operated and conducted as to provide reasonable arid adequate protection and safety to the p e r s o n s employed therein or lawfully frequenting such places. The commissioner may m a k e rules to carry into e f f e c t the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith. The Commissioner's rules are set forth in t h e Industrial Code, 12 N Y C R R Part 23. ... "Labor Law 5 241 (6) imposes a n o n d e l e g a b l e duty upon owners and contractors to provide reasonable and adequate protection and safety to [cons.tructionworkers] [internal quotation marks and citations omitted]" (Forschner v Jucca Co., 63 AD3d 996, 998 [2d Dept 20091). "To recover under Labor Law 5 241 (6), a plaintiff must establish that, i n connection with construction, demolition, or excavation, an owner or general contractor violated an Industrial Code provision which sets forth specific applicable safety standards" (Ventimiglia v T h a t c h , Rlpl-ey & Co., L L C , 96 A D 3 d at 1047). In his bills of particulars, plaintiff a1.1.eges that defendants violated no less than 19 provisions of t h e 1ndustr.i.al 15 [* 17] Code, every one of which has multiple subsections which are left provisions and subdivisions that plaintiff has not expressly specified in his motion papers .to be abandoned. Section 23-1.16 (b) provides: Attachment required. Every approved s a f e t y belt or harness p r o v i d e d or furnished to an employee for his personal s a f e t y shall. be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At a l l times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. S u c h attachments shall be s o arranged that if the u s e r should fall such fall shall not exceed five feet. Although this section has been found sufficiently specific as to serve as a predicate for a section 241 claim (see L a t c h u k v doubt that Liberty provided plaintiff with the proper harness and lanyard, and other safety devices for his protection, it is possible that the safety line was not present; it is possible that plaintiff chose not to wear the harness and lanyard; a i it rd i s possible that plaintiff chose n o t to tie off on the safety line, both of which latter circumstances would demonstrate that 16 [* 18] this provision was not violated. Because issues of fact remain, the parts of defendants and Liberty s motion and cross motion seeking dismissal of plaintiff s section 241 (6) claim based on 1 2 NYCRR 23-1.16 (b) are denied. Section 23-1.16 (e) pertains to lifelines, and is inapplicable in this matter. Plaintiff alleges that defendants failed to provide a safety line, not t h a t the safety line provided failed to comply with this section. Thus, t h e p a r t s of defendants and Liberty s motion and cross motion which s e e k summary judgment dismissing the 241 (6) cl-aim based on 12 NYCRK 23-1.16 (e) are granted. Section 23-5.1 (b) governs scaffold footing or anchorage. It r e q u i r e s that scaffolds footing be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformati.on a n d shall be secure against movement in any direction. inapplicable. This section is There is no evidence that an improper footing or anchorage of the scaffold was a causative factor in plaintiff s accident. The same may be said for section 23-5.1 (c) (2). The provision requi-res that [e]very scaffold shall be provided with adequate horizontal and diagonal bracing to prevent any lateral movement. Whether there was adequate braci.ng or not, there is no evidence that a lateral movement of the scaffold caused or 17 [* 19] contributed to plaintiff s injuries. P l a i n t i f f r e s t s his contention that section 23-5.1 (e) (1) was violated on i t s last sentence: S c a f f o l d planks shall be laid tight and inclined planking shall be securely fastened in place. There is no evidence that the scaffold planks were riot laid tight, and p l a i n t i f f asserts only that they were not s e c u r e l y fastened. S i n c e the regulation only requires that inclined planking be securely fastened, and there is no evidence that t h e subject planking was inclined, this provision is inapplicable. Industrial Code 5 23-5.1 (h) governs s c a f f o l d erection and removal, and requires that [elvery scaffold shall be erected and removed u n d e r the supervision of a designated person. provision does riot apply here. This What plaintiff is alleging is that the scaffolding was improperly erected because it had no safety line a n d that the planks were not secured. That is not the same as asserting that the scaffold was n o t erected u n d e r the supervision of a designated person. Section 23-5.1 (j) (1) requires t h a t [tlhe open sides of a11 s c a f ¬ o l d platforms [except certain inapplicable kinds of platforms], shall be provided with s a f e t y railings constructed arid installed in compliance with this Part (rule). Plaintyiff alleges that the wooden plank he was standing on was a b o u t 10 feet above the metal decking (Plaintiff s Depo., at 60) 18 [* 20] However, Manolakos, a Liberty journeyman painter and supervisor who was in the Same containment area as plaintiff, attests t 2 h a t plaintiff was about six feet above the deck at the time of tiis accident (Manolakos Depo., at 31-32, 35). The discrepancy in testimony precludes a finding as to whether 12 NYCRR 23-5.1 (j) (1) was violated or not. Section 23-5.8 (a) pertains to a1.1 suspended s c a f f o l d s , requiring: Inspection b e f o r e installation. All load-carrying parts or components and means of suspension including adequacy of anchorage or support of every suspended scaffold shall be inspected b e f o r e such scaffold is installed. l There is no evidence that this regulation was violated, no evidence that any of the materials that constituted the scaffold were defective in any way, or that t h e materials were n o t inspected prior to their being installed in the scaffold. Dismissal of plaintiff s section 241 (6) claim, as based on this provision, must be granted. Industrial Code 5 23-5.8 ( c ) (1) r e q u i - r e s ,that [,t]he installation or horizontal change in position of every suspended scaffold shall be in charge of and under the d i r e c t supervision 1 The parties did not address a threshold question of whether the pick scaffold in this c a s e was, in fact, a suspended scaffold governed by Industrial Code 5 23-5.8. 19 [* 21] of a designated person. The evidence indicates that Liberty s riggers set up the cables within the containment aEea a few days before the accident, and that the blasters, including plaintiff, set up the planks on which they stood. The o n l y evidence before the Court with regard to whether the set u p of the containment area was supervised by a designated person is the affidavit of Sergio DeOliveira, Liberty s foreman for the rigging crew, who says that [ a l s the foreman of the rigging crew, i.t was my responsibility to prepare a n d set up the Containment area bridge (DeOlivei-ra12/6/11 Aff. I ¶ 2). There is no evidence designated person, dismissal o f plaintiff s section 241 (6) claim, as based on 12 NYCRR 23-5.8 (c) (l), must be granted. Section 23-5.8 (g), in relevant part, requires that [elvery suspended scaffold shall be tied in to the building that the p i c k scaffold that plaintiff this way. 2 was OL using was defective in While plaintiff asserts t h a t the planks were not While plaintiff alleges only a violation of section 2 3 - 5 . 8 ( c ) , his papers make clear t h a t he is asserting a violation of only subsection (1) of section (c). 20 [* 22] properly secured, he does not allege that they were n o t tied to the bridge. Thus, the allegation does n o t reflect a violation of this section, and the parts of defendants' and Libert;y's motion and cross motion which seek dismi.ssal of plaintiff's section 241 (6) claim, based on this provision, are granted. As for section 2 3 - 5 . 8 (h), no one has testified that the planks on which the blasters stood were supposed to overlap or be nailed in place. Rather, the testimony reflects that the planks were supposed to rest on cables, so that they could be moved from one location to another when the blasters finished in one area and moved on to another. There is no evidence that this section was violated. Lastly, plaintiff a l l e g e s that defendants violated section 23-1.30, which governs illumination in the workplace. \\ Illumination sufficient f o r safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 f o o t candles in any area where persons are r e q u i r e d to work . . . . " Liberty's Bowl-ey, Kalikatzaros, Manolakos and Zapisek testified that the containment area was surrounded by non-see-through tarpaulins that nevertheless let sunlight and daylight through, and that each blaster was a l s o provided with a light (Bowley Depo,, at 56; Kalikatzaros Depo., at 61-62; Manolakos Depo., at 41; Zapisek 21 [* 23] Depo., at 39-41) . Although Liberty's Jose Claudio Rocha attests that l i t t l e light came through t h e tarps (Rocha 11/15/11 Aff., ¶ 9), at no time does plaintiff demonstrate, by any kind of evidence indicating what amount of foot candles of 1-ighting was present that day, that t h i s provision was violated. plaintiff's section 241 Dismissal of claim on the basis Of 1 2 NYCRR 23- 1.30 shall be granted. Contractual Indemnification INDEMNIFICATION RIDER, required Liberty to procure COMMERCIAL GENERAL LIABILITY i n s u r a n c e coverage (Section 111, at 2 - - 3 of 7 ) . [ilnsurance policies " . . I Koch S kansk a , Inc. .. . shall be endorsed to name Owner [ T R T A ] insureds " (Section VI, . . I at 4 or 7 ) - Sec,tion VIII, the HOLD HARMLESS TO the fullest extent permitted by l a w , the Subcontractor [Liberty] shall indemnify, hold harmless and defend the Contractor [Koch], Owner [TBTA] . . . from and against a l l claims, damages, demands, losses, expenses, causes of action, suits or o t h e r liabilities, (including a l l costs and reasonable attorney's fees), including employment related liability claims arising o u t of or resulting from the performance of Subcontractor' s work under t h e S u b c o n t r a c t , provided any s u c h claim, damage, demand, loss or expense is attributable to bodily injury . . . to the extent caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or 22 [* 24] indirectly employed by him or anyone f o r whose acts he may be liable, regardless whether it is caused in part by a party indemnified hereunder. (Section VIII, at 6 of 7). Contrary to Liberty s contention, this provision is valid and enforceable. It contains the savings clause, to the fullest extent permitted by law, and therefore envisions partial indemnification. Thus, there is no violation of Genera1 Obligations Law 5 5-322.1 (see e . g . Hernandez v Argo C o r p . , 95 AD3d 782, 783-784 [ l s t Dept 20121; S m i t h v B r o a d w a y 2 1 0 Devs., LLC, 80 A D 3 d 490, 491 [lst Dept 20111). Although the accident arose out of Liberty s work, there is a q u e s t i o n as to whether plaintiff was the sole proximate cause of his injuries. Thus, no determination of Liberty s negligence, or lack thereof, has been made, and Liberty s obligations under the provision have yet to be triggered. In addition, the possibility of a finding of defendants negligence and liability under Labor Law 5 241 (6) remains. Thus, any determination of Liberty s possible obligation to indemnify defendants pursuant to their contract is premature. CONCLUSION Accordingly, it is ORDERED that the p a r . t s of defendants motion and Liberty Maintenance, Inc. s cross motion that seek summary 23 [* 25] judgment dismissing plaintiff s Labor Law 5 200 and common-law negligence claims are granted; and it is further ORDERED that the parts of defendants motion and Liberty Maintenance, Inc. s cross motion that s e e k summary judgment dismissing plaintiff s Labor Law 5 240 (1) claim are denied; and it is further O R D E R E D that the parts of defendants and Liberty Maintenance, I n c . ~ motion and cross motion that s e e k summary judgment dismissing plaintiff s section 241 (6) claim based on 12 NYCRR 23-1.16 (b), 23-5.1 (j) (1)are denied; and it is further ORDERED that the p a r t s of defendants and L i b e r t y Maintenance, Inc. s motion and cross motion which s e e k summary judgment dismissing the 241 (6) claim based on Industrial Code 55 23-1.16 (e), 23-5.1 (b), 23-5.1 (c) (2), 23-5.1 ( e ) (l), 23-5.1. (h), 23-5.8 (a), 23-5.8 (c) (l), 23-5.8 ( g ) , 23-5.8 (h), and 231 1.30, as well as the other sections of the Industrial Code which were alleged, but not addressed by plaintiff, are granted; and it is further ORDERED that the part of defendants motion which seeks summary judgment on their contractual indemnification claim is denied; and it is further 24 [* 26] ORDERED that plaintiff s cross motion is d e n i e d . Dated: November , 2012 New Y o r k , NY 25

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