Bottcher v West 44th St. Hotel LLC
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Bottcher v West 44th St. Hotel LLC 2013 NY Slip Op 31808(U) August 5, 2013 Supreme Court, New York County Docket Number: 114832/09 Judge: Paul Wooten 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] SCANNED ON 81712013 114832109 Defendants. c Third-party Plaintiffs, o CLERK'S OFFICE ~ ~ ~ NEW YORK INDEX NO. 59006411I ELECTRIC, INC., Third-party Defendant. Affidavits (Reply Mem Motion sequence numbers 002 and 003 are hereby consolidated for purposes of In this action, Joseph Bottcher (plaintiff) seeks to recover damages for personal injuries he allegedly sustained as a result of an accident that occurred in the course of his work at a construction site. Plaintiff now moves for summary judgment, in motion sequence 002, on his Labor Law 55 200, 240(1) and 241 (6) claims as against all defendants. Third-party defendant [* 2] erted in the amended third-party answer. For the reasons stated below, plaintiffs motion and Five Star's cross-motion are denied. nally, defendants' motion for summary judgment is granted, only to the extent of: (1) sing plaintiff's Labor Law 35 240(1) and 241(6) claims against all defendants, (2) dismissing plaintiff's Labor Law § 200 claims against defendant Universal, and granting that portion of the motion that seeks dismissal of Five Star's counterclaim for contractual indemnification, and is otherwise denied. BACKGROUND Plaintiff, an electrician in the employ of Five Star, alleges that, on August 10, 2009, he was injured while he was traveling as a passenger in a personnel hoist in a building under Street, New York, New York (the premises). After working in the construction at 306 West 44th elevator machine rooms at the top of the premises on the day of his injury, plaintiff claims that he got onto the personnel hoist to descend to the lobby floor (see Examination Before Trial [EBT] of plaintiff, at 73). Plaintiff alleges that he was injured when a portion of the personnel hoist he was riding in struck a loading dock landing, causing the rear metal door of the hoist to unexpectedly open and strike plaintiff in the back. According to plaintiff, after he heard a bang, he felt one or both of the handles of the rear hoist door hit him, and then he fell forward on his Page2 of 14 [* 3] the hoist (id. at 7 Tishman entered ted that the Own ated July 18, 2007, wherein Tishman agreed to serve as construction manager at the es, acting as agent of West 44'h to "procure . . . all labor, materials and services f o r . . . ction" of a hotel (the project (see Notice of Cr0ss-M racts that Universal and Five Star each signed ger ... agreed to act in a capacity as agent for [West 44th]in connection nd/or renovation of the Project."' he May 1, 2008 contract between Tishman and Five Star (the Five Star Contract) provides that Five Star would be the underground electric trade on the project. The September ontract between Tishman and Universal (the Universal Contract) provided that Universal was the trade engaged for the purpose of "hoisting, sidewalk shed, fencing and ramps" (see Notice of Cross-Motion, exhibit G). The Universal Contract contained "Rider 'A"', which set out Universal's "Scope of Work" regarding hoisting (id.). In his complaint plaintiff alleges that defendants were negligent under the common law, claim, ed Labor Law §§ 200, 240(1), and 241(6). To suppo his Labor Law § 241 (6) plaintiff alleges that defendants violated Industrial Code sections 23-1.7(f), 23-5.1(f), (h), 236.l(b), (c), (d), 23-7.1 (b), (c), and 23-7.2 (b)(3), as well as various OSHA regulations. In their third-party complaint against Five Star, West 44thand Tishman seek commonlaw indemnification and contribution, contractual indemnification and breach of contract for the failure to procure insurance. Five Star asserted counterclaims for common-law and contractual indemnification. 1 "Project" is defined in these contracts as "[c]onstruction of an approximately 600 room hotel." Page 3 of 14 [* 4] (see Alvarez v Prospect 364 [1974]). The party entitlement to judgment as onstrating the absence of NY2d 851, 853 [1985]; he motion, regardless of 0 NY3d 733, 735 [2008]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving blish the existence of ank Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212[b]). When deciding a summary judgment motion, the Court's role is solely to determine if s u e s exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rotuba ,Extruders v Ceppos, 46 NY2d 223, 231 [1978]). II. Common-Law Negligence and Labor Law 4 200 Claims "To maintain a negligence cause of action, [a] plaintiff must be able to prove the existence of a duty, [a] breach and proximate cause" (Kenney v City of New York, 30 AD3d Page4of 14 [* 5] e to work (see Jock v scano, 269 AD2d 122, 122 [Ist Dept 20001) "[llt is ence claim in a workplace context" (Mendoza v Highpoint lX LLC, 83 AD3d 1, 9 [Ist Dept 201I]). tute applies to owners, contractors, and agents who either contr ted or had actual or ns and method r defective condition (see Lombardi v Stout, 80 NY2d 290 he injured worker's methods by an owner or general ractor, or the creation of or knowledge of a dangerous condition, are, therefore, requisites to such liability (see Candela v City of New York, 8 AD3d 45 [Ist Dept 20041; see York State Hec. & Gas Cor,., 82 NY2d 876, 877 [I 9931; Mifchell v New Univ., 12 AD3d 200 [Ist Dept 20041). Here, supervision and control are not at issue as plaintiff admits that he had no b other than his foreman Danny Fiorello and subforeman Vinny Fiorello (see 34). Thus, liability could only attach based on a dangerous condition (see Sq. Dev., LLC, 62 AD3d 553 [Ist Dept 91; see also Murphy v Columbia Univ.,4 AD3d 200 [Ist Dept 20041). In such circumstances, "whether [a defendant] controlled irected the manner of plaintiff's work is irrelevant to the Labor Law § 200 and common-law negligence claims" (Seda v Epstein, 72 AD3d 455, 455 [Ist Dept 20101). In the instant action, therefore, plaintiff must only show that the owner or general contractor created or had actual or constructive notice of a defective condition causing the alleged accident (see Bayo v 626 Sutter Ave. Assocs., LLC, A D 3 d - , 2013 NY Slip Op 03801 [ I s t Dept 20131; see also LaRose v Resnick Eighth Ave. Assoc., LLC, 26 AD3d 470 [2d Dept 20061). There is no proffered evidence that the owner, West 44th, had a presence at the project Page5of 14 [* 6] r the hoist. Theref s are dismissed. e operating engineer in the hoist at the time of his manager (see plaintiff's EBT at 56, 221-222). In I Contract states that, "[tlhe Construction r testing and approvals are completed and erating engineers on the project were its Plaintiff additionally asserts that Tishman had actual notice of a defective condition in e hoist and/or the loading dock, in that at least one of the personnel hoists at the project had ding dock only a few weeks before, a fact that Five Star had reported to Tishman (see plaintiff's EBT at 40; see also EBT of Danny Fiorello at 35, 37, 41-47). However, Tishman denies notice of any such previous issues either with the hoist or the loading dock (see Hardecker EBT at 29, 1260. Since there are material issues of fact as to whether Tishman had notice of the alleged defective condition(s) or whether a Tishman employee who was operating the hoist caused the alleged accident, that portion of defendants' motion that seeks to dismiss plaintiff's common-law negligence and Labor Law § 200 claims as against Tishman is denied. Further, that portion of Paragraph 35 additionally states that "[p]ersonnelto operate hoists are not included within the [Universal] Contract." Page6of 14 [* 7] Labor Law § 200 is limited to owners and general contractors. [llt will impose liability nst a subcontractor only in the rare case where that party is in effect standing in the shoes or contractor through the conferral of authority upon it to supervise and control the injury (Ryder v Mounf Loreffo Nursing Home Inc., 290 AD2d [3d Dept 20021; see also Urban v No. 5 Times Square Development, LLC, 62 AD3d ists, which may have caused plaintiff s alleged accident. Therefore, although plaintiff s Labor Law § 200 claims as against Universal are dismissed, laintiff s common-law negligence claims as against that entity will survive summary judgment. Labor Law 6 240(1) Claims Under Labor Law 5 240(1), owners, general contractors, and their agents who fail to provide or erect the safety devices necessary to give proper protection to a worker involved in the erection, demolition, repair, alteration, painting, cleaning or pointing of a building or structure are absolutely liable when that worker sustains injuries proximately caused by that failure (see Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]; see also Rizzo v Hellman Nec. Corp., 281 AD2d 258 [Ist Dept 20011). The section of the Labor Law applies to that . . . involve a significant inherent risk because of the relative elevation ... at which materials or loads must be positioned or secured (Cammon v City of New York, 21 AD3d 196, [* 8] related to the effects of gravity ( o., 81 NY2d 494 [1993]). Plaintiff herein alleges that he was standing in the personnel hoist when he heard and floor of the hoist (see plaintiff cannot show that the statute was violated, as any nvolved in his alleged accident. Therefore, that portion of IV. Labor Law 5 241(6) Claims abor Law 3 241(6) provides that ''[all1 areas in which construction, excavation or molition work is being performed shall be so constructed, shored, equipped, guarded, ranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." The section requires owners and contractors at a construction site to "'provide reasonable and adequate d safety' for workers and to comply with the specific safety rules and regulations by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydroec. Co., 81 NY2d supra at 501-502, quoting Labor Law § 241[6]). It is the regulations contained within the Industrial Code that form the basis of a Labor Law § 241(6) claim against owners and general contractors (id.). Furthermore, it has long been held that allegations of OSHA violations do not support a Labor Law § 241(6) claim, as any such violations do not concern the Industrial Code (see Schiulaz v Arne// Constr. Corp., 261 AD2d 247 [Ist Dept 19991). Therefore, all of plaintiff's claims based upon alleged OSHA violations are dismissed. "only if it Additionally, a subcontractor may be held liable under Labor Law § 241(6), ha[s] the authority to supervise and control the work giving rise to the obligations imposed by [* 9] claims as against it are dismissed. As to plaintiff's Labor Law § 241 (6) claims against West 44'h and Tishman, plaintiff ks to recover monetary damages for violati of Industrial Code sections 23-1.7(f), 23-5.1 -6.1 (b), (c), (d), 23-7.1(b), (c), and 23-7.2(b)(3). 12 NYCRR 23-1.7(9 reads as follows: Vertical passage. Stairways, ramps or runw as the means of access to working levels a except where the nature or the progress of installation in which case ladders or others shall be provided. sufficiently specific to support a Labor Law § 241(6) claim (see Murphy v American 277 AD2d 25 [Ist Dept 2000]), no stairways, ramps or runways as means of access icable to plaintiff's alleged accident. Therefore, section 23-1.7(9 of the Industrial Code cannot be used to support plaintiff's Labor Law § 241(6) claims, and as such it is dismissed. Plaintiff additionally seeks to support his Labor Law § 241(6) claims with 12 NYCRR 235.1 (f) and (h),3 which regulate scaffolds. These subsections are not only insufficiently specific to support a Labor Law § 241(6) claim (see Schiulaz v Arne// Constr. Corp., 261 AD2d 247, supra), they are inapplicable to the facts of the instant action. Similarly, 12 NYCRR 23-6.1(b), 12 NYCRR 23-5.1 (f) and (h) reads: * * * (f) Scaffold maintenance and repair. Every scaffold shall be maintained in good repair and every defect, unsafe condition or noncompliance with this Part (rule) shall be immediately corrected before further use of such scaffold. * * (h) Scaffold erection and removal. Every scaffold shall be erected and removed under the supervision of a designated person. * Page 9 of 14 [* 10] d Mason Supply Co., In Although the regulations contained within 12 NYCRR 23-7.1 (b) and (c), entitled era1 requirements" for personnel hoist^,^ may be applicable to the facts that plaintiff nsufficiently specific to MB, Inc., 102 AD3d 476 3-6.1 (b), (c), (d) read: * * * (b) Maintenance. Material hoisting equipment shall at all times be maintained in good repair and proper operating condition with sufficient inspections to insure such maintenance. All defects affecting safety shall be immediately corrected either by necessary repairs or replacement of parts, or such defective equipment shall be immediately removed from the job site. (c) Operation. (1) Only trained, designated persons shall operate hoisting equipment and such equipment shall be operated in a safe manner at all times. (2) Operators of material hoisting equipment shall remain at the controls while any load is suspended. (d) Loading. Material hoisting equipment shall not be loaded in excess of the live load for which it was designed as specified the manufacturer. Where there is any hazard to persons, all loads shall be properly trimmed to prevent dislodgment of any portions of such loads during transit. Suspended loads shall be securely slung and properly balanced before they are set in motion. 12 NYCRR 23-7.1 (b) and (c) states: (b) Maintenance. Personnel hoisting equipment shall be maintained in good repair and in proper operating condition at all times. Inspections of such equipment shall be made with such frequency as to insure such maintenance and operation. (c) Operation. Only trained, designated persons shall operate personnel hoists and such hoists shall be operated in a safe manner at all times. Page 10 of 14 [* 11] claims. Accordingly, plaintiff's claims a patty must show (1) that it has been r actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [Ist Dept 20121). It is generally premature for a court to determine whether or not an owner or contractor ' entitled to common-law indemnification and/or contribution pri to trial. Because there are material questions of fact as to whether Tishman, Universal and/or Five Star were negligent in laintiff's alleged accident, any determination of entitlement to common-law indemnification or contribution as against those entities is premature (see Bovis Lend Lease LMB Inc. v Garifo Confr., Inc., 65 AD3d 872 [Ist Dept 2009]), and as such is denied without prejudice. 6 12 NYCRR 23-7.2 (b)(3) states: (3) Hoist towers shall be erected and dismantled only under the direct supervision of qualified, designated persons. Page 11 of 14 [* 12] e Star counterclaims for the nity Violation of Law, which t]o the fullest extent permitted by law, ... indemnify, defend, and hold harmless s as may be defined he Owner, Construction Manager, su amages, losses and erein ... from an ssions of [Five Star], h ... the performance operations, including To the fullest extent itees shall arise or other fault of any y hereunder shall not of the indemnitee arise to the extent that any such claim, pense was caused e sole negligence of the indemnit owledges that specific considerat by any limitation on able by or for [Five Star] or any subcontractor and/or delegates under Workers' Compensation acts or other employee benefits acts. Where the party seeking contractual indemnification is judgment that it is entitled to indemnity is appropriate; however e from fault, a conditional here there are factual questions as to whether the indemnitee was negligent, or whether or not the alleged accident arose out of the acts or omissions of the indemnitor, such a finding is premature (see Nawaez v 2914 Third Ave. Bronx, LLC, 88 AD3d 500 [Ist Dept 201 I]). Here, there are material questions of fact as to the extent of Tishman's fault, if any, in plaintiff's alleged accident or whether or not plaintiffs alleged accident arose out of Five Star's acts or omissions, and, therefore, an order of entitlement to contractual indemnification is denied without prejudice as premature. Regarding Five Star's counterclaim for contractual indemnification, because Five Star has not proffered any contract language that would entitle it Page 12 of 14 [* 13] 0,000 per occurrence rage for the named insured, e Star has proffered a copy of a CGL policy (number A-2CG-933708-00) issued by 9. The proffered policy has a $1,000,000 per occurrence and a $2,000,000 aggregate limit. With respect to additional insureds, included were those entities "as required by written contract." Since the proffered GCL policy only contains $1,00 Per occurrence and 0,000 aggregate coverage, and it is not clear from the additional insured endorsement language that West 44'hand Tishman were additional insureds, there are material questions of fact as to whether or not Five Star breached the Five Star contract. Therefore, those portions of both the defendants' motion and Five Star's cross-motion that seek dismissal of and summary judgment on that portion of the third-party complaint are denied. CONCLUSION Accordingly, it is hereby ORDERED that plaintiff's motion for summary judgment, motion sequence 002, is denied; and it is further, ORDERED that third-party defendant Five Star Electric, Inc.'s cross-motion for summary Page 130f 14 [* 14] Labor Law 5 200 claims y, Inc. is directed to serve a copy of rder with Notice of Entry upon all parties and u Clerk of the Court who i directed s This constitutes the Decision and Order of the Court. Check if appropriate: : 0 DO NOT POST AUG 07 2013 OUNTY CLERKS OFFICE NEW YORK
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