Calciano v Tarragon Corp.

[*1] Calciano v Tarragon Corp. 2013 NY Slip Op 52337(U) Decided on June 3, 2013 Supreme Court, Kings County Partnow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 3, 2013
Supreme Court, Kings County

Salvatore Calciano, Jr., Plaintiff,

against

Tarragon Corporation, 1200 Grand Street Urban Renewal, LLC, March Associates, Inc., a/k/a March Associates Construction, Inc., and F & G Mechanical Corporation, Defendants.



7545/08
Mark I. Partnow, J.

In this personal injury action arising out of a construction-site accident, the following motions have been consolidated for disposition and, upon consolidation, oral argument, and post-argument submissions: (1) the motion of defendant F & G Mechanical Corporation (F & G) in sequence No. 12 for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the amended complaint and all cross claims against it is granted; (2) the joint motion of defendants 1200 Grand Street Urban Renewal LLC (1200 Grand) and Tarragon Corporation (Tarragon) in sequence No. 11 for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the amended complaint and all cross claims against them is granted as to both defendants; and (3) the motion of defendant March Associates, Inc. (which is sued herein as March Associates, Inc., also known as March Associates Construction, Inc.) (March Associates) in sequence No. 13 granting it summary judgment dismissing the amended complaint and all cross claims against it is granted to the extent that plaintiff's Labor Law § 241 (6) claim insofar as asserted against it is dismissed, and the remainder of its motion is denied.

Background

Plaintiff is a resident of New York, defendant 1200 Grand is a limited liability company formed under the laws of the State of New Jersey, and defendants Tarragon, F & G, and March Associates are each a corporation licensed to do business in the State of New York. 1200 Grand is the owner of a construction project in Hoboken, New Jersey. Tarragon is 1200 Grand's managing agent. Either 1200 Grand or Tarragon hired nonparty Jewel Contracting, Inc. (Jewel) as the project's general contractor. Jewel, in turn, retained defendant March Associates as the construction manager. Jewel hired nonparty Abadin Plumbing & Heating, Inc. (Abadin) as the plumbing subcontractor. Jewel also hired nonparty JM3 Construction as the carpentry subcontractor, of which plaintiff was an employee.

On March 25, 2005, plaintiff sustained injuries when he slipped on grease-like substance and fell while performing work at the project site in New Jersey. He has brought this action for damages alleging violation of Labor Law § 241 (6) and for common-law negligence (see Second Amended Complaint and Second Supplemental Bill of Particulars).[FN1] All defendants now move for summary [*2]judgment dismissing plaintiff's claim with respect to alleged violations of the New York State Labor Law on the ground that New Jersey, rather than New York, law applies. Defendant F & G also moves for summary judgment asserting that it had nothing to do with plaintiff's accident because it never performed any work in the building where plaintiff was injured. The remaining defendants move for summary judgment dismissing plaintiff's common-law negligence claim on the ground that, under New Jersey law, he cannot establish a prima facie evidence of negligence. Concomitantly, defendants seek dismissal of cross claims that they have asserted against one another.

Plaintiff's Labor Law § 241 (6) Claim

It is well-settled that the protection afforded to New York employees under, among others, Labor Law § 241 (6) has no application to an accident that occurs outside New York State, even where all parties are New York domiciliaries (see Padula v Lilarn Props., 84 NY2d 519, 522-523 [1994]; Huston v Hayden Bldg. Maintenance Corp., 205 AD2d 68, 70 [2d Dept 1994], lv dismissed 85 NY2d 967 [1995]). Thus, this matter is governed by principles of New Jersey common law (see Webber v Mutual Life Ins. Co. of NY, 287 AD2d 369, 370 [1st Dept 2001]). Accordingly, the branches of defendants' respective motions for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim insofar as asserted against them are granted.

Plaintiff's Common-Law Negligence Claim; Co-Defendants' Cross Claims

Liability of Defendant F & G (the Plumbing Company)

The Court finds that defendant F & G has made a prima facie showing, through the submission of its vice president's deposition testimony, the Jewel/Abadin plumbing contracts, and the work permit obtained by Abadin for plumbing work, that it (F & G) performed no work in the building at issue. In opposition, plaintiff has failed to raise a triable issue of material fact requiring a trial. Indeed, plaintiff has advanced against F & G a theory of liability worthy of the creator of the "locked room" mystery genre. Plaintiff contends that F & G must have spilled the grease on the stairs at issue because, on the day of his accident, no employees of the officially hired plumbing contractor (Abadin) were working in the building at issue, while several F & G vans were parked near the building. Plaintiff theorizes that, some time before the accident, an F & G plumber must have entered the building, ascended the stairs, and spilled the grease on it.[FN2] The success or failure of this theory turns on plaintiff's ability to demonstrate that the substance on which he slipped was, in fact, the plumbers' grease. The only evidence in this regard — pretrial deposition testimony of plaintiff's foreman Steven Golden, a carpenter who did not touch, smell, or otherwise test the substance on which plaintiff slipped — is woefully inadequate to establish that it was, in fact, the [*3]plumbers' grease,[FN3] rather than some other slippery substance.[FN4] Another consideration to be noted is that no union labor was required at the project, while F & G, a union shop, worked solely on projects that required union labor. Accordingly, the remaining branch of F & G's motion for summary judgment dismissing plaintiff's common-law negligence claim and all cross claims against it is granted.

Liability of Defendants 1200 Grand and Tarragon

(the Building Owner and Manager, Respectively)

With respect to the responsibility of defendants owner 1200 Grand and manager Tarragon for the injuries sustained by plaintiff:"[O]rdinarily where a person engages a contractor, who conducts an independent business by means of his own employees, to do work . . ., he is not liable for the negligent acts of the contractor in the performance of the contract" (Majestic Realty Assoc., Inc. v Toti Contr. Co., 30 NJ 425, 430-431 [1959]). Certain exceptions have come to be accepted; namely: (1) where the landowner retains control of the manner and means of performing the work which is the subject of the contract; (2) where he engages an incompetent contractor; or (3) where the activity contracted for constitutes a nuisance per se (id. at 431).

Here, there is no evidence that 1200 Grand or Tarragon either purposely or negligently caused the stairs which plaintiff was using at the time of his accident to become slippery. Nor is there any evidence showing that 1200 Grand or Tarragon knew or should have known of the presence of grease spots on the stairs at issue. Additionally, there is no evidence showing that 1200 Grand or Tarragon knowingly engaged an incompetent contractor (Jewel) or that either of them retained control over the stairs. Thus, 1200 Grand and Tarragon cannot be held liable for failing to protect plaintiff from a condition on its property of which it reasonably had no knowledge, and that may [*4]have existed because of the alleged negligence of Jewel and/or March Associates. Thus, the exercise of due care would not and did not cause 1200 Grand or Tarragon to know about the allegedly slippery condition on the stairs and the need to protect plaintiff from it. Accordingly, the remaining branch of 1200 Grand and Tarragon's joint motion for summary judgment dismissing plaintiff's common-law negligence claims and all cross claims against each of them is granted.

Liability of Defendant March Associates

(the Construction Manager and, Potentially, a De Facto General Contractor)

The New Jersey Supreme Court has posed the issue in this type of construction case as follows:

"[Whether] a reasonable jury weighing the evidence in plaintiff's favor could determine the existence of facts that, based on the foreseeability of the risk of injury, the relationship of the parties, and the opportunity to take corrective measures, would support the determination that there was a duty of care owed to plaintiff that was breached by defendant."

(Alloway v Bradlees, Inc., 157 NJ 221, 240 [1999]).

A general contractor has a duty to maintain the premises on which it performs work in a reasonably safe condition for persons who the contractor may reasonably expect to come onto the site (see Raimo v Fischer, 372 NJ Super 448, 453 [App Div 2004]). The discharge of this duty includes the performance of reasonable inspections to ensure that the construction site is in a safe condition (id.).

March Associates contends that it was not a contractor but a mere construction manager that was hired by the general contractor Jewel to manage the project. It maintains that it had no power to hire any contractors or to exercise control over the means or methods of work or work site safety. The owner and president of March Associates (Louis D. March, Sr.) testified (at pages 17 and 29 of his pretrial deposition) that although he visited and walked the project site twice a month, he was not responsible for inspecting (nor did he inspect) the ongoing work. Further, March Associates relies on a Change Order, made October 1, 2004 (or five months before plaintiff's accident), reflecting that Jewel had assumed March Associates' duties as the project manager for the site. According to Mr. March's affidavit, dated Oct. 24, 2012 (at ¶ 7), "when the change order became effective on October 1, 2004, March Associates['] role at the . . . [p]roject became limited to reviewing subcontracts entered into between Jewel, the general contractor, and its subcontractors, attending some project meetings and answering general construction questions from Jewel or the owner of the . . . [p]roject."[FN5] In this regard, Mr. March testified (at page 25 of his pretrial deposition) that Jewel [*5](rather than March Associates) acted as the project manager and conducted weekly on-site meetings. Thus, March Associates has established prima facie that it was not a general contractor or was otherwise responsible for inspecting the condition of the building in which plaintiff was working.

In opposition, however, plaintiff has raised a triable issue of fact as to whether, notwithstanding the terms of the Change Order, March Associates performed many of the general contractor functions on the project site and, therefore, was responsible for, among other things, inspecting the building at issue for work site safety. According to the pretrial deposition testimony of plaintiff's foreman Steven Golden, March Associates maintained a trailer at the site, had an on-site superintendent (Mike Sette) to whom plaintiff's employer and other subcontractors reported, and scheduled subcontractors' work.[FN6] Mr. Golden also testified that he had reported plaintiff's accident to the on-site superintendent Mr. Sette, who he believed, based on his conversations with Mr. Sette, was working for March Associates and, as a representative of the general contractor, was responsible for ensuring safety at the work site.[FN7] Because on a motion for summary judgment the Court's duty [*6]is to find issues rather than determine them, the truth of Mr. Golden's testimony that March Associates was supervising the construction project from its on-site trailer and was responsible for safety at the work site is presumed (see Robles v City of NY, 2013 NY Slip Op 03606 [1st Dept 2013]).

The Court further notes that the close familial relationship between Mr. March (through March Associates) and Jewel (the general contractor) militates in favor of submitting to the jury the matter of March Associates' potential liability to plaintiff. The record demonstrates that Mr. March is the father of Jewel's Chairman, Julie Dentinger, who is married to Adam Dentinger, a Jewel principal who, as the project manager, allegedly ran the weekly meetings at the site. Moreover, the March Associates/Jewel construction management agreement (together with the subsequent Change Order) was signed by Mr. March on his company's behalf and by his daughter Julie on Jewel's behalf. This overlap between the defendant March Associates and nonparty Jewel, which is no longer in business,[FN8] cannot be overlooked, particularly because plaintiff not deposed anyone from Jewel.

Thus, when viewing the evidence in the light most favorable to plaintiff as the non-movant, it is sufficient to create questions of material fact relating not only as to March Associates' role as a de facto general contractor, but also as to the relationship of the parties, the foreseeability of the injury, and other negligence and control considerations (see Costa v Gaccione, 408 NJ Super 362, 375 [App Div 2009]; Schwartz v Zulka, 70 NJ Super 256, 263 [App Div 1962], modified on other grounds 38 NJ 9 [1962] [it was for the jury to determine whether the hazard of falling by tripping over a protruding nail left by a previous contractor and carelessly missed by the inspection efforts of defendant general contractor was within the fair ambit of defendant's duty]). Whether or not March Associates was aware of the presence of grease on the stairs before plaintiff's accident is irrelevant, as notice to March Associates is not at issue. Rather, the issue is whether March Associates was required to inspect the common areas, stairs, and passages in the building in which plaintiff and other trades were working. On the current record, the Court is unable to resolve this issue as a matter of law.[FN9]

Lastly, cross-claims for common-law indemnification insofar as asserted against March Associates cannot be resolved at this stage of the action. Under the applicable New York law,[FN10] "[s]ummary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to each party involved" (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2d Dept 2008]). To be entitled to dismissal of cross claims for common-law indemnification against it, March Associates must show that it was "not negligent" and that the proposed indemnitors (F & G, 1200 Grand, and Tarragon) were "responsible for the negligence that contributed to the accident" (George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2d Dept 2009] [internal quotation marks omitted]). As noted above, sufficient questions of fact exist as to the extent of March Associates' liability, if any, to plaintiff. Accordingly, dismissal of cross claims against March Associates for common-law indemnification is premature (see Mendelsohn v Goodman, 67 AD3d 753, 754 [2d Dept 2009]).

Conclusion

In accordance with the foregoing, it is hereby

ORDERED that the motion of defendant F & G Mechanical Corporation and the joint motion of defendants 1200 Grand Street Urban Renewal LLC and Tarragon Corporation for summary judgment are both granted, and plaintiff's amended complaint and all cross claims are dismissed against each of these defendants; and it is further

ORDERED that the motion of defendant March Associates, Inc. (incorrectly sued herein as March Associates, Inc., also known as March Associates Construction, Inc.) for summary judgment is granted only to the extent that plaintiff's Labor Law § 241 (6) claim insofar as asserted against it [*7]is dismissed, and the remaining common-law claim and all cross claims insofar as asserted against it are severed and shall continue; and it is further

ORDERED that the caption of this action is amended to read as follows:

X

Salvatore Calciano, Jr.,

Plaintiff,

against -Index No. 7545/08

March Associates, Inc.,

Defendant.

X

The parties are reminded that their next court appearance is on June 24, 2013, in the Settlement Conference Part.

This constitutes the decision, order, and judgment of the Court.

E N T E R,

J. S. C.

Footnotes

Footnote 1:Two of the defendants filed for bankruptcy during the pendency of this action. In Oct. 2008, March Associates filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey (Case 08-31212-MS). By order, entered Aug. 24, 2009 (Docket No. 126), the bankruptcy court vacated the automatic stay to permit plaintiff herein to prosecute the instant action. Thereafter, the bankruptcy court confirmed March Associates' chapter 11 plan of liquidation by order, entered June 21, 2010 (Docket No. 231). The bankruptcy case of March Associates was closed by Final Decree, entered Nov. 29, 2010 (Docket No. 278). Separately, Tarragon and its affiliates filed for chapter 11 in the United States Bankruptcy Court for the District of New Jersey in Jan. 2009 (Case No. 09-10555-DHS). By order, entered Apr. 12, 2010, the bankruptcy court modified the automatic stay for the sole purpose of permitting plaintiff herein to prosecute this action to settlement or final judgment, subject to certain conditions (Docket No. 1726). By order, entered June 18, 2010, the bankruptcy court confirmed the second amended and restated joint plan of reorganization for Tarragon and its debtor affiliates (Docket No. 1962). It is unclear from the bankruptcy docket whether a Final Decree has been entered closing Tarragon's own chapter 11 case, rather than the cases of its debtor affiliates.

Footnote 2:Plaintiff's accident occurred after lunch, but he had used the same stairs before lunch the same day and did not observe the grease on the stairs (see Calciano, Jr. Tr at 40, 50).

Footnote 3:See Golden Tr at 19 ("There was grease on the stairs. Different sections of the stairs [had] . . . greasy parts. I don't know what type of grease it was but it was . . . construction material grease"; at 29 (Q: . . . Do you have any idea how [grease] got there? A: I can think but I don't know how, no. It was different trades working"; at 30 ("[F]rom my thinking being in the construction I know the plumbers use grease on their fittings. We [carpenters] didn't . . . . Basically that's only ones I can think of"; at 57 ("Q: You testified earlier that what you saw was construction material grease. How do you know it was construction material grease? A: Working at a construction site so construction material grease the way that it's from construction material"; at 58 ("Q: How do you know it was slippery? A: Just by looking at it, it looked watery. Q: Only by looking at it you believed it to be slippery? A: Yeah. . . . I didn't get [t]o test it myself but just by looking at it, it looked slippery, yes"; at 65 ("Q: You ever come to learn where the grease on the floor came from? A: No"; at 66 (Q: But you didn't actually touch it, feel it? A: No. Q: Smell it, no? A: No." [emphasis added]).

Footnote 4:In this regard, a witness from the construction manager March testified (at pages 45-46 of his pretrial deposition) that other trades (sprinkler fitters, the HVAC contractors, pile drivers, elevator contractors, or anyone else who used machinery that required lubrication) may have used a slippery substance other than grease.

Footnote 5:Although Mr. March's affidavit was executed in New Jersey and is not accompanied by a certificate of conformity as required by CPLR 2309 (c), the requirement of certification may be dispensed with where, as here, the person administering the oath for an out-of-state affidavit is a notary (see JPMorgan Chase Bank, N.A. v S.I. Wood Furniture Corp., 34 Misc 3d 1214[A], 2012 WL 203483, *5, 2012 NY Slip Op 50074[U] [Sup Ct, Kings County 2012] [collecting authorities]).

Footnote 6:See Golden Aff., dated Nov. 11, 2008, ¶ 3 ("The general contractor on the job was March Associates, a/k/a March Associates Construction, Inc. The reason I know that they were the general contractors is that there were many signs both inside and outside the building of 1200 Grand Street, Hoboken, New Jersey [i.e., where plaintiff had his accident], with the name of March Associates on it. We had been working at that site on prior days and the signs had been up from the time we started working there."). See also Golden Tr at 26-28, 36, 41-43, 45-46, and in particular, at 41 ("I would always go into the March [Associates] trailer and they would instruct what they wanted JM3 [i.e., plaintiff's employer] doing on that particular day."); at 66 ("[E]verybody [who is] working on the job site, March Associates is the GC, general contractor. Whoever working on the job site is working for March Associates [as] subcontractors"); at 69 ("There was a general job meeting once a week . . . in the March [Associates] trailer where the electricians, plumbers, everybody would come."); at 69 ("Q: And who ran the meeting for March [Associates]? A: . . . Mike Sette was one of them."); at 42 (Mike Sette "was known as one of the supervisors for March [Associates]. . . . He was known to all the trades. [I]f we need to know what to do, you have to go into the March [Associates] trailer and see Mike Sette.");See Golden Tr at 61-62; at 77 ("I reported [plaintiff's accident] to the Super . . . [i]n his trailer . . . ."); at 83 (Q: And how did you report it? A: I went into the Super's trailer, I sent one of my guys [i.e., plaintiff] . . . he had an accident on the steps and . . . I saw grease on the steps and . . . [plaintiff] is sitting in my car right now, he didn't want to go to the hospital. That was basically what I told him. Q: And what did Mike say to you in response? A: [I]f the guy is going to the hospital we have to fill out a report. Q: Did he say anything about the condition on the stairs? A: He said he would look into it."). According to Mr. Golden (at page 42), Mr. Sette told him that he (Sette) worked for March Associates. Mr. Sette was never deposed in this action, and no affidavit from him is in the record.

Footnote 7: See Golden Tr at 80 ("Q: And whose responsibility is it to do general safety on the job such as, if they find out that there is a greasy stairway to clean up the grease; whose responsibility is that? A: The general contractor."). As Mr. Golden's pretrial testimony made it clear, he meant March Associates, rather than Jewel, as the general contractor.

Footnote 8:See March, Sr. Tr at 44:23-25.

Footnote 9:The published decisions on which March Associates relies are factually inapposite, as they either involved a work-related risk (see Muhammad v New Jersey Tr., 176 NJ 185, 198 [2003] ["Plaintiff was injured as he was performing the very work his employer . . . was hired to do."]; Rigatti v Reddy, 318 NJ Super 537, 541 [App Div 1999] [collapse of a roof that plaintiff was hired to replace]; Wolczak v National Elec. Prods. Corp., 66 NJ Super 64, 69 [App Div 1961] [plaintiff's drill jammed, kicked, and threw him off balance]),or nonconforming materials (see Pfenninger v Hunterdon Cent. Regional High School, 167 NJ 230, 237 [2001] [a nonconforming trench pipe]), or a structure that was erected to enable plaintiff to perform work (see Gibilterra v Rosemawr Homes, 19 NJ 166, 169 [1955] [one side of a newly dug trench collapsed, injuring plaintiff who was inside it]). Here, however, plaintiff slipped and fell while he was carrying a piece of sheetrock up the steps that were available for use by all trades. The unpublished decisions on which March Associates also relies (see Patterson v Johnson, 2008 WL 2339817 [June 10, 2008], and Whitten v Sybron Chemicals, Inc., 2007 WL 2376608 [Aug. 22, 2007], certification denied 193 NJ 222 [2007]) do not constitute precedent and are not binding upon any court, pursuant to NJ Rule 1:36-3 (see Stengart v Loving Care Agency, Inc., 201 NJ 300, 318, n 4 [2010]). Moreover, neither of these decisions are relevant, as the plaintiffs therein encountered a dangerous condition that was known to them (see Patterson v Johnson, 2008 WL 2339817, *2 ["Plaintiff's own testimony indicates that he observed and was aware of ice and snow accumulations, both on his way to and at the (defendants') residence."]; Whitten v Sybron Chemicals, Inc., 2007 WL 2376608, *4 ["Plaintiff was assigned to work in a sludge tank. He was well aware that there was some sludge in the tank and that it was slippery. Nonetheless, according to his own testimony, he walked through the sludge and then climbed a ladder without stopping to clean his work boots. The sludge was not a hidden danger; plaintiff had ample warning of its presence."]). In contrast, plaintiff testified (at pages 202:24-203:8 of his pretrial deposition) that he did not notice any grease or similar substance on the stairs before his accident.

Footnote 10:In the conflicts of law area, regulation of conduct is distinguished from loss allocation. When conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred (e.g., liability under Labor Law § 241 [6]) generally applies. However, where the conflicting rules at issue are loss allocating (e.g., common-law indemnification) and the parties to the lawsuit share a common domicile, the loss-allocation rules of the common domicile will apply (see Cooney v Osgood Mach., Inc., 81 NY2d 66, 74-75 [1993]). As the record is devoid of evidence where each of the co-defendants is domiciled, the Court applies for the purpose of the instant motion the principle of common-law indemnification as interpreted by New York courts.