Wittman v FC Beekman Assoc., LLC
Annotate this CaseDecided on August 26, 2013
Supreme Court, Kings County
Marc Wittman, Plaintiff,
against
FC Beekman Associates, LLC, FOREST CITY RATNER COMPANIES, KREISLER BORG FLORMAN GENERAL CONSTRUCTION COMPANY INC. and ZWICKER ELECTRIC CO., INC., Defendants.
24083/09
Attorney for the plaintiffs
Kelner & Kelner, Esqs.
Gail S. Kelner, Esq.
140 Broadway, 37th Floor
New York, New York 10005
(212) 425-0700
Attorney for Defendants Zwicker Electric Co., Inc.
Camacho Mauro Mulholland, LLP
Eric L. Cooper, Esq.
350 Fifth Avenue - Suite 5101
New York, New York 10118
(212) 947-4999
Attorney for defendants FC Beekman Associates, LLC,
Forest City Ratner Companies and
Kreisler Borg Florman General Construction Company Inc
Fabiani Cohen & Hall, LLP
Michael E. Sande, Esq.
570 Lexington Avenue -4th Floor
New York, New York 10022 (212) 644-4420
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219(a) of the defendants FC Beekman [*2]Associates, LLC, Forest City Ratner Companies, and Kreisler Borg Florman General Construction Company Incorporated's summary judgment motion on the issue of liability and dismissing the complaint and all cross-claims asserted against them; and for summary judgment in their favor on their cross- claims Against Zwicker Electric Co., Inc. (hereinafter Zwicker) for contractual and common law indemnification
-Notice of Motion
-Affirmation in support
-Exhibits A-N
-Affirmations in Opposition
-Reply affirmation
Recitation in accordance with CPLR 2219(a) of the plaintiff's cross-motion pursuant to CPLR 3212 for an order granting partial summary judgment in his favor on his claim predicated on the defendants violation of Labor Law §241(6)
-Notice of Cross Motion
-Affirmation in support
-Exhibits A-H
-Affirmation in Opposition
-Reply affirmation
By notice of motion filed on March 13, 2013 under motion sequence number six, defendants, FC Beekman Associates, LLC (hereinafter Beekman), Forest City Ratner Companies (hereinafter Forest), and Kreisler Borg Florman General Construction Company Inc. (hereinafter Kreisler) have jointly moved (hereinafter and collectively the moving defendants) pursuant to CPLR 3212 for an order (1) granting summary judgment in their favor on the issue of liability and dismissing the complaint and all cross-claims asserted against them; and (2) granting summary judgment in their favor on their cross- claims against Zwicker Electric Co., Inc. (hereinafter Zwicker) for contractual and common law indemnification.
By notice of cross-motion filed on May 9, 2013 under motion sequence number seven, plaintiff Marc Wittman (hereinafter Wittman) has opposed the moving defendants' motion and has cross-moved pursuant to CPLR 3212 for an order granting partial summary judgment in his favor on his claim predicated on the defendants violation of Labor Law § 241(6).
The moving defendants have opposed Wittman's cross-motion for summary judgment on liability as asserted against them.
Zwicker has opposed the moving defendants' motion and Whittman's cross-motion for summary judgment on their respective claims asserted against it.
BACKGROUND
[*3]On September 23, 2009, Wittman commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office (hereinafter KCCO). By verified answer and cross-claim dated November 9, 2009, Zwicker joined issue. By verified answer and cross-claim dated December 29, 2009, the moving defendants joined issue. On January 2, 2013, Wittman filed a note of issue.
Wittman's complaint, bill of particulars and deposition testimony alleges, among other things, that on April 28, 2008, at around 11:30 a.m., while working for Winco Corporation on the Beekman Tower project on the ground floor at a construction site located at 8 Spruce Street/60 Beekman Street in New York County (hereinafter the subject premise), he was injured when he tripped on a hazardous condition caused by the negligent acts and omissions of the defendants in violation of Labor Law §§ 200 and 241(6).
LAW AND APPLICATION
It is well establish that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72, 790 NE2d 772 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated For Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).
The moving defendants' joint answer to the complaint has admitted the following facts pursuant to CPLR 3018(a). At the time of Wittman's accident, Zwicker, Forest and Kreisler were domestic corporations and Beekman was a limited liability company duly organized under the laws of the State of New York. Beekman owned the subject premises and had entered into written contracts with Kreisler and Zwicker to perform construction services at that site. Beekman's contract with Kreisler was for construction management services.
Beekman's motion to dismiss the Labor Law § 200 claims
Wittman testified at his deposition that on April 21, 2008, while working for Winco on the ground floor at the subject premise, he tripped on a piece of electrical [*4]conduit pipe due to the defendants' negligence. Each of the moving defendants contend that they are not liable under Labor Law § 200 because they did not exercise any supervision or control over the method or means that Wittman performed his work at the time of his accident. Forest also contends that it does not own and did not contract for the performance of any work at the subject premise. No defendant disputed Wittman's deposition testimony concerning how the accident occurred.
Labor Law § 200 is merely a codification of the common law duty placed upon owners and contractors to provide employees with a safe place to work (see Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2nd Dept 2000]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed." (Ortega v Puccia, 57 AD3d 54, 61[2nd Dept 2008]). "These two categories should be viewed in the disjunctive" (Id.).
"Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." (Id.; see also Reyes v Arco Wentworth Management Corp., 83 AD3d 47, 51 [2nd Dept 2011]).
"A contractor on a construction site will be liable for an injury caused by a dangerous condition on the site where it created the condition, or where, with sufficient control over the conditions on the site, the contractor failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after the contractor had actual or constructive notice of the condition." ( see Nankervis v Long Is. Univ., 78 AD3d 799 [2nd Dept 2010]).
"[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or ... [a] contractor[ ] cannot be had ... unless it is shown that the party to be charged had the authority to supervise or control the performance of the work." (see Ortega v Puccia, 57 AD3d 54, 61 [2nd Dept 2010]). The determinative factor on the issue of control is not whether a [defendant] furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed" (Eldoh v Astoria Generating Co., L.P., 81 AD3d 871, 875 [2nd Dept. 2011] [quoting Everitt v Nozkowski, 285 AD2d 442, 443—444 [2nd Dept 2001]).
When an accident is alleged to involve defects in both the premises and methods and materials used at the work site, the property owner or contractor is "obligated to address the proof applicable to both liability standards." (see Reyes v Arco Wentworth Management Corp., 83 AD3d at 52).
Here, as framed in the complaint and verified bill of particulars, Wittman alleges that at the time of accident, the work site was not safe because, a piece of electrical conduit pipe debris was negligently left by the defendants on the work site which created a tripping hazard. Thus, his claim arises from a dangerous condition rather than defects in the methods or materials used at the work site.
Beekman, as the admitted owner of the subject premise, may be held liable for a violation of Labor Law § 200 and common law negligence if it created the dangerous condition that caused [*5]the accident or had actual or constructive notice of the dangerous condition that caused the accident (Reyes v Arco Wentworth Management Corp., 83 AD3d 47, 51 [2nd Dept 2011]). Beekman tendered no evidence that it did not create the alleged dangerous condition. Beekman also failed to provide evidence that the subject premise had been inspected at any particular time prior to Wittman's accident, so as to demonstrate the absence of prior actual or constructive notice. Instead, Beekman relied exclusively on its contention that it had no authority to control the method or means which Whittman performed his job. Inasmuch as Whittman's claim was not based on any defects in the methods or materials used at the work site, proof of Beekman's lack of authority to control Whittman's method or means of performance was irrelevant.
Nevertheless, Beekman did not make a prima facie showing of this contention.Although Beekman entered into a written contract with Kreisler for its construction services the contract was not annexed to the moving papers. Without the contract, neither Beekman nor Kreisler can make a prima facie showing that they lacked authority to control the performance of Whittman's work.
Kreisler's motion to dismiss the Labor Law § 200 claim
Kreisler, as the construction manager of the work on the subject premise, may be held liable for a violation of Labor Law § 200 if it created the condition, or where, with sufficient control over the conditions on the site, it failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after it had actual or constructive notice of the condition (see Nankervis v Long Is. Univ., 78 AD3d 799 [2nd Dept 2010]).
Kreisler tendered no evidence that it did not create the alleged dangerous condition. As previously indicated, Kreisler did not annex its written contract with Beekman to show its lacked contractual authority to supervise the method and means that Wittman performed his work. Furthermore, Kreisler also failed to provide evidence that the subject premise had been inspected at any particular time prior to Wittman's accident. Consequently, Kreisler also failed to meet its prima facie burden to dismiss the Labor Law § 200 claims (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 53 [2nd Dept 2011]).
Forest's motion to dismiss the Labor Law § 200 claim
The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings ( Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]).
Wittman's complaint alleges that Forest is an owner, agent of the owner, operator, and lessee of the subject premise. It also alleges that Forest, its agents, servants and employees controlled, maintained and managed the subject premise. The allegations are stated in separately numbered paragraphs pursuant to CPLR 3014, and are at times inconsistent. CPLR 3014, however, permits claims and defenses to be stated "regardless of consistency." This recognizes the unpredictability of litigation and permits parties to set forth everything they think they have, leaving it to the trier of fact to make the final determination for them ( see Connors, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR 3014:6).
Forest seeks summary dismissal of the Labor Law § 200 claim by asserting that it is not the owner of the project, that it did not supervise any work that contributed to the causing of [*6]Wittman's accident and that it did not contract for any work at the subject premise. The assertions are made in an affirmation by the moving defendants' counsel and by an affidavit of David Esterman, Forest's associate general counsel (hereinafter Esterman). The affirmation of the moving defendants' counsel demonstrates no personal knowledge of the underlying facts alleged in the complaint and has no evidentiary value (Wolfson v Rockledge Scaffolding Corp., 67 AD3d 1001, 1002 [2nd Dept 2009]).
Esterman claims personal knowledge that Forest did not own or contract for the performance of any work at the subject premise. However, he does not set forth the basis for his knowledge. He does not allege personal knowledge of Forest's business transactions or of its business practice in the creating of its business records. Nor did he annex any of Forest's business records. Furthermore, he does not annex a copy of a deed for the subject premise to show Forest's lack of ownership at the time of Wittman's accident. Furthermore, his affidavit is silent on Wittman's clearly plead facts asserting that Forest is the agent of the owner, the operator of the subject premise, and the entity that controls, maintains or manages the subject premise. These specific allegations may potentially provide a separate basis for imposing liability on Forest. By not addressing any one of these allegations of fact, Forest cannot meet its prima facie burden of demonstrating the absence of any material facts (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012]).
Under these circumstances, there is no need to address Wittman's papers submitted in opposition to the moving defendants' motion to dismiss the Labor Law § 200 claims asserted against them (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 53 [2nd Dept 2011]).
The moving defendants' motion to dismiss the Labor Law § 241(6) claim
Wittman's claim under Labor Law § 241(6) is predicated on a violation of 12 NYCRR 23—1.7 (d) and (e). The moving defendants claim that these provisions do not apply to the facts of this case. Under Labor Law § 241(6), an owner or contractor may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case ( see Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 349—350 [1998] ). There is no dispute that 12 NYCRR 23—1.7 (d) and (e), are sufficiently specific to support a cause of action under
§ 241 (6).
Industrial Code (12 NYCRR) § 23—1.7 (d) states, "Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition. Ice, snow, water, grease, and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."
Industrial Code (12 NYCRR) § 23—1.7(e)(2) states, "The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials."
The moving defendants correctly contend that Industrial Code § 23—1.7 (d) is inapplicable to the facts of this case. Wittman's claims is that he tripped and fell on a piece of an electrical conduit pipe left on the ground floor when he was working with steel. An electrical conduit pipe [*7]does not cause a slippery condition and is not a substance which may cause slippery footing, rather it is a tripping hazard (see generally Velasquez v 795 Columbus LLC, 103 AD3d 541 [1st Dept 2011]).
Industrial Code (12 NYCRR) § 23—1.7 (e)(2) is designed to protect against tripping hazards and sharp projections on floors and platforms (see Mendez v Jackson Development Group, Ltd., 99 AD3d 677, 679 [2nd Dept 2012]). Wittman was working as a lather and was laying out steel beams and securing them when he tripped on the electrical conduit pipe. The electrical conduit pipe was not an integral part of his work (see generally Sanders v St. Vincent Hosp., 95 AD3d 1195 [2nd Dept 2012]). Therefore, the moving defendants have not demonstrated that (12 NYCRR) § 23—1.7(e)(2) is inapplicable to the facts of this case.
Accordingly, the moving defendants' motion to dismiss the Labor Law §241(6) claim predicated on a violation of Industrial Code § 23-1.7(d) is granted and its motion to dismiss the Labor Law §241(6) claim predicated on a violation of Industrial Code
§ 23-1.7(e) is denied.
The moving defendants' motion to dismiss Zwicker's cross-claim against them
Zwicker's answer asserts three cross-claims against the moving defendants. The first is for common law indemnification, the second is for contractual indemnification and the third is for a breach of an agreement to procure liability insurance for its benefit. Contrary to the requirements of CPLR 2214, the moving defendants did not set forth the facts, the proffered evidence or the law relied upon for this relief. Apart from stating that they sought this relief in the notice of motion, they did not offer any basis for granting same. It is therefore denied.
The moving defendants' motion for summary judgment on their cross-claims against Zwicker.
The moving defendants assert four cross-claims against Zwicker. The first is for common law indemnification, the second is for contribution, the third is for contractual indemnification and the fourth is for a breach of an agreement to procure liability insurance for their benefit.
Inasmuch as the moving defendants have failed to demonstrate that they are not negligent in causing Wittman's accident as a matter of law, their cross claim for common-law indemnification and contribution against Zwicker are premature (Martinez v City of New York, 73 AD3d 993 [2nd Dept 2010] citing Nasuro v PI Assoc., LLC, 49 AD3d 829 [2nd Dept 2008]).
Furthermore, summary judgment on a claim for common-law indemnity or contribution is appropriate only where there are no issues of material fact concerning the precise degree of fault attributable to each party involved (see Aragundi v Tishman Realty & Const. Co., Inc., 68 AD3d 1027, 1030 [2nd Dept 2009], see also La Lima v Epstein, 143 AD2d 886 [2nd Dept 1988]).
The moving defendants rely on a contract between Beekman and Zwicker for their third cross-claim seeking contractual indemnification. The right to contractual indemnification depends upon the specific language of the contract (Martinez v City of New York, 73 AD3d 993 [2nd Dept 2010] citing George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2nd Dept 2009]). Here, the indemnification provision in the subject contract requires Zwicker to indemnify the owner, construction manager, and anyone else acting on their behalf from all claims arising out of Zwicker's negligence or the negligence of its subcontractors. Since it has not been determined whether Zwicker was negligent, an award of summary judgment on the contractual indemnification cross-claim would also be premature ((Martinez v City of New York, 73 AD3d [*8]993 [2nd Dept 2010] citing Quiroz v Beitia, 68 AD3d 957, 961 [2nd Dept 2009]).
Contrary to the requirements of CPLR 2214, the moving defendants did not set forth the facts, the proffered evidence or the law relied upon for their fourth cross-claim alleging Zwicker's breach of an agreement to procure liability insurance for their benefit.
Wittman's motion for summary judgment on his claim under Labor Law §241(6) claim
As previously set forth, Wittman's claim predicated on a violation of Industrial Code § 23-1.7(d) is dismissed. On his remaining claim predicated on a violation of § 23-17 (e) (2) Wittman is not entitled to summary judgment. Wittman's comparative fault is a defense to Labor Law § 241 (6) (Rizzuto, 91 NY2d 343, 350 [1998]). Here, Wittman's testimony regarding the lighting conditions and location where the electrical conduit pipe was located and whether it was readily observable is sufficient to raise an issue with respect to whether he should have exercised better care to avoid stepping on it. Accordingly, Wittman's failure to demonstrate the absence of comparative fault on his part requires denial of his summary judgment motion (see Riffo—Velozo v Village of Scarsdale, 68 AD3d 839, 842 [2009]; see also Roman v A1 Limousine, Inc., 76 AD3d 552, 552—553 [2010]). Even if the location of the electrical conduit pipe and the question of whether it was readily observable is insufficient to demonstrate a factual issue with respect to Wittman's comparative fault, his motion relating to § 241(6) would still have to be denied. Partial summary judgment in favor of plaintiff is generally inappropriate in a Labor Law
§ 241 (6) case because violation of an Industrial Code rule only constitutes some evidence of negligence, and the question of whether the equipment, operation or conduct at the work site was reasonable is reserved for the jury (see Seaman v Bellmore Fire Dist., 59 AD3d 515, 516 [2nd Dept 2009]; see also Misicki v. Caradonna, 12 NY3d 511, 521 [2009]).
CONCLUSION
Beekman, Forest and Kreisler's motion for summary judgment dismissing plaintiff's complaint is granted only as to plaintiff's claim under Labor Law § 241 (6) predicated on a violation of § 23-1-7 (d) of the Industrial code and is denied as to all other claims asserted in the complaint.
Beekman, Forest and Kreisler's motion for summary judgment dismissing Zwicker's cross-claims asserted against them is denied.
Beekman, Forest and Kreisler's motion for summary judgment in their favor on the issue of liability on their cross-claims asserted against Zwicker is denied.
Wittman's motion for summary judgment in his favor on the issue of liability on his claims asserted under Labor Law § 241(6) is denied.
The foregoing constitutes the decision and order of this Court.
Enter:
J.S.C.
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