Cardenas v Ben Krupinski Gen. Contr., Inc.

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Cardenas v Ben Krupinski Gen. Contr., Inc. 2015 NY Slip Op 32246(U) November 9, 2015 Supreme Court, Suffolk County Docket Number: 11-4772 Judge: John H. Rouse Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX No. CAL. No. 11-4772 14-013390T SUPREME COURT - STATE OF NEW YORK l.A.S. PART 12 - SUFFOLK COUNTY PRESENT: Hon. JOHN H. ROUSE Acting Justice of the Supreme Court COPY MOTION DATE 11-19-14 (#003) MOTION DATE 1-7-15 (#004) MOTION DATE 2-25-15 (#005) ADJ.DATE 3-11-15 Mot. Seq.# 003 - MotD # 004-MotD # 005 -XMotD ---------------------------------------------------------------X JOSE CARLOS CARDENAS, Plaintiff, ROSENBERG, MINC, FALKOFF & WOLFF Attorney for Plaintiff 122 East 42nd Street, Suite 3800 New York, New York 10168 - against - BEN KRUPINSKI GENERAL CONTRACTOR, INC., and BONNIE KRUPINSKI, Defendants. MOUND COTTON WOLLAND & GREEN GRASS Attorney for Defendantffhird-Party Plaintiff Ben Krupinski General Contractor, Inc. One New York Plaza New York, New York 10004 ---------------------------------------------------------------)( BEN KRUPINSKI GENERAL CONTRACTOR, INC., Third-Party Plaintiff, - against HAMPTON CONTRACTING, INC., Third-Party Defendant. CUOMO,LLC Attorney for Defendant Bonnie Krupinski 9 East 38 1" Street New York, New York 10016 CARROLL, MCNULTY & KULL, LLC Attorney for Third-Party Defendant Hampton Contracting 570 Lexington Avenue, 8th Floor New York, New York 10022 --------------------------------------------------------------)( Upon the following papers numbered I to 2L. read on these motions for leave to amend the pleadings and for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 16, 17 - 30 ; Notice of Cross Motion and supporting papers 31 - 35 ; Answering Affidavits and supporting papers 36 -38; 39 - 43; 44 - 45 ; Replying Affidavits and supporting papers 46 - 47: 48 - 49; 50 - 51; Other Memoranda of Law; (and afte1 bem ing eottn:sel in Stlppo11 and opposed to the 1notion) it is, [* 2] Cardenas v Ben Krupinski General Contracting Index No. 11 -4772 Page No. 2 ORDERED that the branch of plaintiffs motion for an order amending the caption to reflect his correct name, Juan Carlos Cardenas, is granted; and it is ORDERED that the amended pleadings shall be deemed served upon service of a copy of this order with notice of its entry on defendants; and it is ORDERED that the branch of plaintiff's motion for partial summary judgment in his favor on his Labor Law §240( I) claim is denied; and it is ORDERED that the motion by defendant/third-party plain ti ff Ben Krupinski General Contractor, Inc. for, inter alia, summary judgment dismissing plaintiff's common law and Labor Law §§241(6) and 200 claims is granted to extent indicated herein, and is otherwise denied; and it is ORDE'RED that the cross motion by third-party defendant Hampton Contractor, Inc. for summary judgment dismissing the third-party complaint against it is granted to extent indicated herein, and is otherwise denied. Plaintiff Juan Cardenas commenced this action to recover damages for personal injuries he allegedly sustained on February 8, 2011 while working on the construction of a home owned by defendant Bonnie Krupinski. Plaintiff allegedly was injured when a scaffold on which he was standing collapsed, causing him to fall to the ground. At the time o f the accident, plaintiff was an employee of third-party dcfondant Hampton Contractor, Inc. (hereinafter " HCP'), a subcontractor hired to perform framing services. Defendant/third-party plaintiff Ben Krupinski General Contractor, Inc. ("KGC'), was the general contractor for the construction project. By his complaint, plaintiff alleges causes of action based upon the common Jaw and Labor Law§§ 200, 240 (I), and 24 I (6). Defendants joined issue, asserting general denials and cross claims for breach of contract, contribution and indemnification. Thereafter, KOC commenced a thirdparty action against HCL I ICl joined the third-party action and asserted counterclaims against KOC. On July 28, 2014, the parties executed a stipulation discontinuing the action against Bonnie Krupinski. The action was continued against KOC, and the note of issue was filed on August l I, 2014. Plaintiff now moves, pursuant to CPLR 3025. for an order permitting the amendment of the caption to reflect his correct name, Juan Carlos Cardenas. Plaintiff asserts that the inclusion of the incorrect name in the summons and complaint was a ministerial error, and requests, should the motion be granted, that the amended caption be deemed served on all parties. Plaintiff also moves for partial summary judgment on his Labor Law §240( I) claim, arguing, among other things, that the collapse of the subject scaffold is prima facie proof of KOC's liability under the statute. KOC opposes the motion on the basis a triable issue exists as to whether plaintiff~s refusal to follow his employer's instruction that he utilize available pipe scaffolding while working on the project was the proximate cause of his injuries. By way of a separate motion, KGC moves for summary judgment dismissing plaintiff's claims under the common law and Labor Law §§241 (6) and 200. KGC also seeks conditional summary judgment on its third-party claims over and against HCI for breach of contract and contractual indemnification. KGC argues that the subcontractor agreement entered into by the parties during 2009 applied to all framing jobs BCI performed on KGC's projects, that the agreement required HCI to indemnify and insure KGC against all claims arising from work performed during such projects, and that the indemnification requirement was not contingent upon a showing that the HCI was at fault for the happening of the accident. [* 3] Cardenas v Ben Krupinski General Contracting Index No. 11-4 772 Page No. 3 Plainti ff only opposes the branch of KOC' s motion seeking dismissal of the Labor Law §241 (6) claim, asserting his complaint has alleged specific and applicable violations of the industrial code. I ICJ opposes KGC's motion and cross-moves for summary judgment dismissing the third-party complaint on the ground the contribution and common law indemnification claims against it are barred by section I I of the Workers' Compensation Law. HCJ also argues that the proposal by which it agreed to perform work on the project in question did not require it to either indemnify or insure KGC, and that the general subcontractor agreement it previously entered with KOC expired approximately five months prior to plaintiffs accident. KOC concedes that its third-party claims for common law indemnification and contribution arc inactionablc, where, as here, plaintiff did not suffer a grave injury. However, KOC opposes the branch of the cross motion seeking dismissal of the contractual indemnification claim on the basis the subcontractor agreement entered by the parties during 2009 applied to all framing jobs HCJ performed on KGC's projects, that the agreement did not have an expiry date, and that it unambiguously required HCJ to indemnify and insure KGC against any claims for damages, expenses, or legal fees arising out of the performance of the work. KGC also opposes the branch of the cross motion for dismissal of the breach of contract claim, asserting that a triable issue exists as to whether HCI, whose insurer denied KGC's tender for additional insured coverage, failed to add KGC as an additional insured under its insurance policy. Initially, the Court grants the unopposed branch of plaintiffs' motion seeking an order permitting the amendment of the caption to reflect his correct name and deem the corrected caption served on all defendants. Generally, leave to amend pleadings should be freely granted absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025; Simon v Granite Bl<lg. 2, LLC, J 14 AD3d 749, 980 NYS2d 489 [2d Dept 2014); Aurora Loa11 Servs., LLC v Thomas , 70 J\D3d 986, 897 NYS2d 140 f2d Dept 2010J). It is well settled that on a motion for summary judgment the function of the court is to determine whether issues of fact exist and not to resolve issues of fact or determine matters of credibility (see Doize v Holiday /1111 Rrmko11koma, 6 J\D3d 573, 574, 774 NYS2d 792 f2d Dept 2004 J). Furthermore, facts that are alleged by the nonmoving party and all inferences which may be drawn from them must be accepted as true (see O'Neill v Town of Fishkill, 134 J\D2d 487, 488 , 521 NYS2d 272 12d Dept 1987]). The proponent of a summary j udgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp. , 68 NY2d 320, 508 NYS2d 923 l 19861; Wi11egrad v New York U11iv. Med. Ctr., 64 NY2d 851 , 487 N YS2d 316 11985 J; A11dre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [ 1974 J). Once the movant meets this burden, the burden shifts to the opposing party to show by tender of sufficient facts in admissible form that triable issues remain which preclude summary judgment (see Winegrcul v New Yori< U11iv. Med. Ctr .. 64 NY2d 851 , 487 NYS2d 316 11985 ]). rIowever, in opposing a summary judgment motion, mere co nclusions, unsubstantiated allegations or assertions are insufficient to raise triable issues of fact (Zuckerma11 v City of New York , 497 NYS2d 557, 404 NE2d 718 [1980)). Labor l ,aw §240( 1), conunonly known as the ·'scaffold law," creates a duty that is nondelegable, and an owner or general contractor who breaches that duty may be held liable for damages regardless of whether they actually exercised any supervision or control over the work performed (see Ross v Curtis-Palmer Hy dro-Elec. Co. , 81NY2d494, 601NYS2d49 [1993)). Specifically. Labor Law§ 240(1) requires that [* 4] Cardenas v Ben Krupinski General Contracting Index No. 11-4772 Page No. 4 safety devices, such as scaffolds, be so ''constructed, placed and operated as to give proper protection to a worker" (Klein v City of New York , 89 NY2d 833, 834, 652 NYS2d 723 l 1996]). To prevail on a claim pursuant to Labor Law§ 240( I), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries (see Bla11d v Ma11ocheria11 , 66 NY2d 452, 497 NYS2d 880 [ 1985 j; Sprague v Peckham Materials Corp. , 240 AD2d 392, 658 NYS2d 97 !2d Dept 1997J). Where an employee has been provided with an elevation-related safety device, it is usually a question of fac.:t as to whether the device provided proper protection (see Beesimer v Albany Ave/Rte. 9 Realty, 216 AD2d 853, 629 NYS2d 816 rJd Dept 1995 J), "except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its function of supporting the worker" (Briggs v Halterman , 267 AD2d 753, 754-755, 699 NYS2d 795 l3d Dept I 9991; see Blake v Neighborhood Hous. Serv. of N. Y. City, I NY3d 280, 285-286, 771 NYS2d 484 [20031). Nevertheless, ''[n]ot every worker who falls at a construction site ... gives rise to the extraordinary protections of I .abor Law §240( I). Rather, liability is contingent upon ... the failure to use. or the inadequacy of, a safety device of the kind enumerated [in the statute j" (Narducci v Ma11ltasset Bay Assoc., 96 NY2d 259, 267, 727 NYS2d 37 f2001]). And while contributory negligence on the part of the worker is not a defense to a Labor Law §240(1) claim where none or inadequate safety devices arc provided (see Blake v Neighborhood Hous. Servs. of N. Y. City, supra), liabillty does not attach where a plaintifPs conduct is the sole proximate cause of his or her own injuries, such as where adequate safety devices are available at the worksite, but the worker for no good reason either does not use or misuses them (see Gallagher v New York Post, 14 NY3d 83, 896 NYS2d 732 f2010]: Robi11son v East Med. Ctr., LP, 6 NY3d 550, 554, 814 NYS2d 58912006); Mo11tgomery v Fed. Express Corp., 4 NY3d 805, 795 NYS2d 490 [2005 j). Herc, plaintiff failed to establish his prima facie entitlement to summary judgment on his Labor I.aw §240 (1) claim by eliminating triable issues from case (see Alvarez v Prospect Hosp. , supra~ Wiltegrad v New York Univ. Med. Ctr., supra). Although plaintiff testified that the scaffold in question failed to fulfill its safety function when it unexpectedly collapsed, his own submissions, namely the deposition transc.:ript of I !Cl's president, Thomas Simone, raise a significant triable issue as lo whether plaintiff refused to utilize available pipe scaffolding, and instead improvised by erecting the makeshift wooden scaffold on which he was working al the time of the accident (see Silvia v Bow Tie Partners, LLC, 77 A03d I 143, 909 NYS2d 202 (2d Dept 2010 J; Cantineri v Carrere, 60 A03d 1331, 875 NYS2d 417 [4th Dept 2009); see also Bascombe v West 44th St. Hotel, LLC, 124 A03d 812, 2 NYS3d 569 !2d Dept 20151). Significantly, Simone testified that he personally instructed all of HCI's employees, including plaintiff, that they were expected to utilize the pipe scaffolding provided by KGC on the worksite, and that he specifically instructed them to ensure that the scaffold was "solid and level" before any work was performed on top of them. Simone further testified that the pipe scaffolding was readily available on the day of the accident. and that he observed 1JC£' s employees using pipe scaffolds prior to the date of the accident. Simone testified that when he inspected the area where the accident occurred, he observed the poorly made wooden scaffold that had collapsed, and that his foreman informed him that plaintiff chose to build the wooden scaffold because he was too la~y to use the pipe scaffolding. Turning to the motion by KGC for, inter alia, dismissal of plaintiffs claims under Labor Law §§241 (6) and 200, the unopposed branch of KGC's motion seeking dismissal of the Labor law §200 claim is granted, as it is undisputed that KGC never possessed the authority to control or supervise the method or [* 5] Cardenas v Ben Krupinski General Contracting Index No. I 1-4772 Page No. 5 manner of plaintiff's work and never provided him the alleged defective equipment (see Bennett v Bucke, I 3 I AD3d 993, 16 NYS3d 26 I [2d Dept 2015]: A lla11 v DHL Expresl· (USA), Inc. , 99 AD3d 828, 952 NYS2d 275 (2d Dept 2012]; Perri v Gilbert Johnson Enters., ltd. , 14 AD3d 681, 790 NYS2d 25 12d Dept 2005 J). The court also grants the branch of KGC's motion seeking dismissal of plaintifrs claims under Labor Law §241 ( 6). To recover damages on a cause of action alleging a violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific satety standards (Rizz uto v L.A. We11ger Co11tr. Co., 91 NY2d 343, 348, 670 NYS2d 81611998]; Forsch11er v Jucca Co. , 63 A03d 996, 883 NYS2d 63 l2d Dept 2009]; Cu11-En Lin v Holy Family Monuments, I 8 J\D3d 800, 796 NYS2d 684 f2d Dept 2005]), and the rule or regulation alleged to have hccn breached must be specific and applicable to the facts of the case (see Forschner v Jucca Co. , supra; Cu11-En Lill v Holy Family Mo11ume11ts, supra). Herc, the violations alleged by plaintiff are predicated on either inactionahle general safety standards or inapplicable sections of the industrial code. In particular, 12 NYCRR 23-1.5 (setting forth an employer's general responsibilities) and 12 NYCRR 23.5. l(f) (setting forth the general requirement that scaffolds be kept in good repair) merely set forth general safety standards, which are inactionable (see Mahoney v Madeira Assoc. , 32 AD3d I 303, 822 NYS2d 190 14th Dept 2006]~ Moutray v Baron, 244 J\D2d 618, 663 NYS2d 926 (3d Dept 19971). 12 NYCRR 23-1. 7(g) and 12 NYCRR 23.1. 16, which regulate, respectively, contaminated or oxygen deprived areas of the worksite and the condition of available safety belts and lifelines, arc inapplicable to the facts of this case (see Forschner v Jucca Co., 63 AD3d 996, 883 NYS2d 63 12d Dept 2009]; Dzieran v 1800 Bosto11 Rd., LLC, 25 AD3d 336, 808 NYS2d 36 [lst Dept 2006J; Osorio v Kenart Realty, Inc., 35 AD3d 561. 826 NYS2d 645 f2d Dept 20061). 12 NYCRR 23-1.11 also is inapplicable, as plaintiff's own testimony indicates that he did not observe any defects in the lumber and nai l fastening used in the construction of the subject scaffold (see Purcell v Metlife Inc. , 108 AD3d 431, 969 NYS2d 43 ( 1st Dept 2013]). As to the branch of KGC's motion for summary judgment on ]ts third-party claims against I IC! for breach of contract and contractual indemnification,"[ wlhen a party is under no legal duty to indemni fy, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491, 549 NYS2d 365 f1989j). Moreover, where, as here, the existence and the terms of the parties' agreement arc disputed , "it is necessary to look to the objective manifestations of the intent of the parties as gathered hy their expressed words and deeds" (Brown Bros. Elec. Contrs., /11c. v Beam Constr. Corp., 41NY2d397, 393 NYS2d 350 I I 9771; see also Flores v Lower E. Side Serv. Ctr., l11c. , 4 NY3d 363, 367, 795 NYS2d 491 f2005]). While it is the responsibility of the court to interpret written instruments, where a finding of whether an intent to contract is dependent as well on other evidence from which differing inferences may he drawn, a question of fa<:t arises (Flores v lower E. Side Serv. Ctr., Inc. , supra; Murphy v Eagle Scaffolding, Inc., 129 AOJd 799, 11 NYS3d 218 [2d Dept 2015 J; Tulli110 v Pyramid Cos., 78 AD3d I 041, 912 NYS2d 79 r2d Dept 2010J; Auchampauglt v Syracuse Univ.. 67 AD3d 1164, 889 NYS2d 706 f3d Dept 2009J). The parties. which have worked on multiple projects together, dispute whether the tenns of an allegedly expired general subcontractor agreement or a proposal estimate submitted by the subcontractor governs HCI 's duties to either insure or indemnify KOC . The general subcontractor agreement, which is dated September 24. 2009, contain provisions which requi re 1ICI to provide KGC with additional insured coverage and indemnify it against any "claims, damages ... lor] legal expenses, arising out of or resulting from performance of sub-contracted work to the extent caused in whole or in part by the contractor or anyone directly or indirectly employed by fit]:' However, the agreement, which permits either party to [* 6] Cardenas v Ben Krupinski General Contracting Index No. 11-4772 Page No. 6 terminate upon 30 days notice. also contains a provision that states it "will be renewed and updated on a yearly basis." The proposal estimate HCJ provided to KGC is dated January 3, 2011. It sets forth an estimate and what appears to be an acknowledgment of a partial payment for services already rendered. The proposal does not, however, contain any other term or language requiring indemnification, additional insured coverage, or seeking to incorporate the 2009 general subcontractor agreement. In support of its contention that the 2009 subcontractor agreement was applicable to HCI's work on the subject premjses, KGC submitted the deposition transcript of its president who testified that, consistent with the parties course of dealings, the 2009 "master" agreement related to any and all projects HCI performed on behalf of KGC, including the project in question. In contrast, HCI's president testified that the proposal estimate wac; the only agreement which covered its work on the subject premises, and that he believed that the terms of the 2009 agreement expired one year from the date it was executed. HCI's president further testified that he did not know whether the terms of the 2009 agreement was incorporated into the proposal estimate, and that at no time after 2009 did KGC notify HCJ that it was renewing the terms of the 2009 agreement. Here, given the existence of the parties' dispute regarding the applicability of the 2009 general subcontractor agreement, any finding as to whether I1CI is contractually required to insure or indemnify KGC should be left to the trier of fact (see Flores v Lower E. Side Serv. Ctr., l11c. , supra; Murphy v Eagle Scaffolding, Inc. , supra; Tu/lino v Pyramid Cos., supra; Auchamptwgh v Syracuse U11il1., supra). Accordingly. the branch of KGC ' s motion for conditional summary judgment on its third-party claims for breach of contract and indemnification over and against I ICI is denied. Based on the foregoing, the branch of I ICl's cross motion for summary judgment dismissing KGC's third-party claims for breach on contract and contractual indemnification against it is denied. However, as KGC concedes that plaintiff did not suffer a grave injury and its third-party claims for common law indemnification and contribution arc inactionablc, the court grants the unopposed branch of IrCl's motion seeking dismissal of those claims (see Masiello v 21 E. 79th St. Corp., 126 AD3d 596, 7 NYS3d 35 11 st Dept 2015 J; Lue v Finkelstein & Pllrtners, LLP, 94 /\D3d 1386, 943 NYS2d 636 f3d Dept 2012'1). FINAL DISPOSITION

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