Kosiv v ATC Group Servs., Inc.

[*1] Kosiv v ATC Group Servs., Inc. 2016 NY Slip Op 51307(U) Decided on September 19, 2016 Supreme Court, New York County Braun, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016
Supreme Court, New York County

Igor Kosiv, Plaintiff,

against

ATC Group Services, Inc. d/b/a ATC ASSOCIATES, JVN RESTORATION ENVIRONMENTAL SERVICES CONTRACTORS, INC., JVN RESTORATION, INC., SKANSKA USA INC., CHAMPION CONSTRUCTION CORP, WING SPECIALTY TRADES and SKANSKA USA BUILDING, INC., Defendants.



105570/11



Attorneys for plaintiff: Jaroslawicz & Jaros, LLC, by Michael Levine, Esq., 225 Broadway, 24th Floor, New York, New York 10007 (212) 227-2780.

Attorneys for defendants Skanska USA, Inc., Skanska USA Building, Inc. and Wing Specialty Trades: Ahmuty, Demers & McManus, Esqs, by Kenneth B Danielsen, Esq., 200 I.U. Willets Road, Albertson, New York 11507 (516) 294-5433.

Attorneys for defendant Champion Construction Corp.: Law Offices of James J. Toomey, 485 Lexington Avenue, 7th Floor, New York, New York 10017 (917) 778-6600.

Attorneys for ATC Group Services, Inc., The Law Office of Leon R. Kowalski, by Marc Silverstein, Esq., 12 Metrotech Center, 28th Floor, Brooklyn, New York 11201 (718) 250-1100.

Attorneys for third-party Pinnacle Environmental Corporation: Wade, Clark, Mulcahy, by Vincent F. Terrasi, Esq., 111 Broadway, 9th Floor, New York, New York 10006 (212) 267-1900.

Attorneys for second third-party defendant Tri State Transfer Associates, Inc.: Furman, Kornfeld & Brennan LLP, 61 Broadway, 26th Floor, New York, New York 10006 (212) 867-4100.
Richard F. Braun, J.

This is a personal injury action arising from a construction accident asserting causes of action sounding in common law negligence, and Labor Law §§ 200, 240(1), and 241(6). Plaintiff allegedly was injured on February 24, 2011 while using a pallet jack to load the back of a truck with cardboard boxes containing debris from asbestos removal in connection with renovations at the United Nations Secretariat Building. Plaintiff claims that he slipped on the floor due to wetness that came from the boxes, which were hosed down to avoid spreading asbestos dust. Plaintiff also alleges that it was dark in the trailer so that he was unable to see the water on the floor. Plaintiff ruptured his right achilles tendon. Defendant Skanska USA Building, Inc., the project's construction manager that was hired by the United Nations, contracted with defendant Wing Specialty Trades (Wing) for asbestos abatement work. Wing did not do any actual work at the site but in turn subcontracted with plaintiff's employer, third-party defendant/second third-party plaintiff Pinnacle Environmental Corporation (Pinnacle) (in the second third-party caption as Pinncale [sic]), to undertake the actual asbestos abatement. Defendant ATC Group Services, Inc. (ATC) was hired as an independent environmental monitor by the United Nations to primarily perform air monitoring.[FN1]

Defendants Skanska USA Inc., Skanska USA Building, Inc. (collectively Skanska), and Wing together move for summary judgment dismissing the complaint and all cross claims and counterclaims against them and for summary judgment on their claims for indemnification and breach of contract against Pinnacle. Movants contend that plaintiff's injury did not result from a gravity related risk; that they are not Labor Law defendants; that they did not supervise, direct or control plaintiff's work; that any water in the truck that allegedly caused plaintiff's accident was required for the work; and that illumination at the accident site was adequate. In addition, they claim they are entitled to contractual indemnity from Pinnacle, as there is no evidence of active negligence on their part and the accident arose out of Pinnacle's work. ATC moves separately for summary judgment dismissing the complaint against that defendant and all cross claims.

A party moving for summary judgment, pursuant to CPLR 3212 (b), "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Friends of Thayer Lake LLC v Brown., 27 NY3d 1039, 1043 [2016]; accord Pokoik v Pokoik, 115 AD3d 428 [1st Dept 2014]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]; see Hoover v New Holland N. Am., Inc., 23 NY3d 41, 56 [2014]). In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershaw v Hospital for Special Surgery, 114 AD3d at 82).

Labor Law liability is limited to owners and general contractors or their statutory "agents" (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Urban v No. 5 Times Sq. [*2]Dev., LLC, 62 AD3d 553, 554 [1st Dept 2009]).[FN2] In order for a third party, such as a construction manager, project coordinator, or a subcontractor to also be liable under Labor Law §§ 240(1) or 241(6) as a statutory "agent" of the owner, the owner must have delegated to that party the authority to supervise or control the injury-producing work (see Russin v Louis N. Picciano & Son, 54 NY2d at 318; Nascimento v Bridgehampton Constr. Corp., 86 AD3d 189, 193 [1st Dept 2011] ["Subcontractors have been held to be the statutory agents of general contractors in situations in which provisions of the subcontracts explicitly granted supervisory authority, and those in which evidence showed that the subcontractors actually exercised supervisory authority" (internal citations omitted)]). "[T]he law does not hold that all subcontractors in the chain of command' are necessarily as liable as the general contractor" (id. at 192).

Skanska, the construction manager, was given the obligation by contract to supervise the means and methods of the work, and had duties akin to a general contractor (see Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005] ["Although a construction manager of a work site is generally not responsible for injuries under Labor Law § 240(1), one may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury"]). Consequently, Skanska is a Labor Law defendant regardless of whether Skanska actually exercised supervision and control over plaintiff's work (see Rizzo v Hellman Elec. Corp, 281 AD2d 258, 259 [1st Dept 2001]). Wing coordinated the work of the subcontractors that Wing hired, but was not delegated the authority to oversee the means and methods of the injury-producing work, which is necessary to make Wing a statutory agent under the Labor Law (see Smith v McClier Corp., 22 AD3d 369, 371 [1st Dept 2005]). In contrast to Weber v Baccarat, Inc. (70 AD3d 487, 488 [1st Dept 2010]), where the record demonstrated that a subcontractor had been given such authority by contract, there is no evidence here that Wing was delegated the power to supervise and control the injury-producing work or that Wing exercised supervision and control over the work. Similarly, ATC was not a Labor Law defendant, as it was hired by the owner to monitor the air and asbestos abatement procedures, but ATC did not oversee the injury-producing work. Thus, only Skanska is a Labor Law defendant, not Wing or ATC.

Labor Law § 200 is a codification of common law negligence regarding the duty of owners and general contractors to construction workers (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). As the First Department stated regarding Labor Law § 200 in Cappabianca v Skanska USA Bldg. Inc. (99 AD3d 139, 143-144 [1st Dept 2012] [internal citation omitted]):

Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed.

Where the dangerous condition arises from a subcontractor's methods or materials, recovery against the general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation (Ross v Curtis-Palmer Hydro-Elec. Co., [*3]81 NY2d at 505-506; DaSilva v Haks Engrs., Architects & Land Surveyors, P.C., 125 AD3d 480, 481 [1st Dept 2015]). Plaintiff testified at his deposition that he was supervised solely by Voitek Olshevsky of Pinnacle. Neither Skanska nor Wing supervised, directed, or controlled the specific work, and Skanska's general supervisory and site safety functions are insufficient to impose liability under Labor Law § 200 or for common law negligence (see Francis v Plaza Constr. Corp., 121 AD3d 427, 428 [1st Dept 2014]). Wing did not perform any actual work at the site, and plaintiff testified at his deposition that he did not even know who Wing was.

To the extent plaintiff claims that a dangerous wet condition of the floor was created by watering down bags and the boxes, plaintiff is referring to means and methods of the work that Skanska and Wing did not directly supervise, and the condition was not a dangerous condition on the premises but rather a necessary element of the asbestos abatement process (see Cappabianca v Skanska USA Bldg. Inc., 99 AD3d at 142-143, 145). Further, Skanska and Wing have made a prima facie showing that they were not negligent in connection with plaintiff's accident and that they did not have notice of a dangerous condition, and plaintiff has not raised an issue of fact to the contrary. Accordingly, summary judgment has been awarded dismissing the Labor Law § 200 and common law negligence claims against all movants, as well as cross claims for common law contribution and indemnity.

Labor Law § 240 (1) envisions "extraordinary elevation risks" and not "the usual and ordinary dangers of a construction site" (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843 [1994]; see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009] ["that the purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury-producing accident is attributable to the latter sort of risk"]; Hargobin v K.A.F.C.I. Corp., 282 AD2d 31, 35 [1st Dept 2001] ["test is whether the protective device being utilized is intended to facilitate access to a different elevation level for the worker or his materials"]). Defendants-movants have shown that the pallet jack with the boxes of debris that plaintiff was moving was already on the deck of the truck at the time of his accident so that the accident did not involve a gravity or elevation related risk. Thus, Labor Law § 240 (1) does not apply to the circumstances here (see Davis v Wyeth Pharms., Inc., 86 AD3d 907, 909-910 [3rd Dept 2011] [where the plaintiff was injured moving a filtration unit that was on two pallet jacks, the Court denied leave to amend the complaint to add a Labor Law § 240 claim]). Indeed, plaintiff has not expressly opposed dismissal of the Labor Law § 240 (1) claim.

Labor Law § 241 (6) imposes a nondelegable duty upon owners and general contractors to comply with Industrial Code provisions mandating compliance with concrete specification (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502, 505 [1993]). To establish liability under Labor Law § 241 (6), a plaintiff must demonstrate a violation by a defendant(s) of an Industrial Code rule or regulation mandating compliance with a specific, positive command (see Morris v Pavarini Constr., 9 NY3d 47, 50 [2007]; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349 [1998]). Unlike Labor Law § 240 (1), comparative negligence may be considered (see Misicki v Caradonna, 12 NY3d 511, 515 [2009]; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 350), but any such culpable conduct by a plaintiff does not defeat his or her Labor Law § 241 (6) cause of action (Maza v University Ave. Dev. Corp., 13 AD3d 65, 66 [1st Dept 2004] [*4]["Negligence on plaintiff's part may require an apportionment of liability but does not absolve defendants of their own liability under § 241 (6)"]).

Plaintiff limits his opposition to claimed violations of industrial code sections 12 NYCRR 23-1.7(d), 12 NYCRR 23-1.7(e)(1) and (2), and 12 NYCRR 23-1.30, thereby waiving any claim to other provisions that plaintiff relied upon in his bill of particulars (see Cardenas v One State St., LLC, 68 AD3d 436, 438 [1st Dept 2009] ["Plaintiff abandoned any reliance on the various provisions of the Industrial Code cited in his bill of particulars by failing to address them either in the motion court or on appeal"]). 12 NYCRR 23-1.7(d), which applies to slipping hazards, and 12 NYCRR 23-1.7(e)(1) and (2), which is applicable to tripping hazards caused by dirt, debris and scattered tools, are sufficiently specific to support a Labor Law § 241(6) claim (see Lopez v City of NY Tr. Auth., 21 AD3d 259, 259-260 [1st Dept 2005]). However, if any water was on the truck bed at the time of the accident, the water was a necessary and required safety precaution and not a foreign substance because the water was sprayed onto the boxes and the loading dock to limit asbestos dust that would escape from the bags of asbestos-covered material that was being removed (see Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 789-790 [1st Dept 2008] ["the wet plastic and asbestos fibers were neither a "foreign substance" as defined by 12 NYCRR 23—1.7(d)", nor "debris" within the meaning of 12 NYCRR 23—1.7(e)(2) (internal citations omitted)]; cf. Ocampo v Bovis Lend Lease LMB, Inc., 123 AD3d 456, 457 [1st Dept 2014] [the ice on which the plaintiff had slipped and fell was not integral to the asbestos removal for purposes of 12 NYCRR 23—1.7(d), comparing the circumstance there to those in O'Sullivan v IDI Constr. Co., Inc. (7 NY3d 805, 806 [2006]), and furthermore dismissal of the claim predicated on an alleged violation of 12 NYCRR 23—1.7(e) was warranted, given that the provision was inapplicable]; Purcell v Metlife Inc., 108 AD3d 431, 432 [1st Dept 2013] ["23-1.7 (e) (1) is inapplicable, since plaintiff testified that he slipped on wet plywood while carrying a heavy steel beam, and there is no evidence in the record that plaintiff tripped [and] ... the accident did not take place in a passageway'"; "Section 23-1.7 (e) (2) is inapplicable because the wet plywood on which plaintiff slipped is not debris'"]). In addition, there were never any complaints to Pinnacle about wet conditions on the loading dock or the back of the trucks (John Reilly EBT, exhibit M to Skanska's motion at 93; Wojciech Olszewski EBT, exhibit L to Skanska's motion, at 21).

12 NYCRR 23-1.30 provides in pertinent part:

Illumination sufficient for 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 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass.

While defense witnesses testified at their depositions that the loading docks were well lit, plaintiff asserts in his affidavit that "[i]t was dark inside the trailer at the time of the accident so I was not able to see the water on the floor. There was no lighting either inside the trailer or outside the trailer that was directed into the trailer to help us see." In his deposition, plaintiff testified that there were no lights in the trailer, and "[b]y the doors of the trailer, yes, I could see everything. But in the back, no." Elsewhere plaintiff testified that "it was dark there in the back of the trailer." Given that plaintiff's accident happened at the rear of the trailer, his evidence [*5]raises an issue of fact as to whether the lighting was inadequate under the circumstances and a proximate cause of plaintiff's accident, which is sufficient to defeat summary judgment (see DeMaria v RBNB 20 Owner, LLC, 129 AD3d 623, 626 [1st Dept 2015]; Robbins v Goldman Sachs Headquarters, LLC, 102 AD3d 414, 414-15 [1st Dept 2013]; Hernandez v Columbus Ctr., LLC, 50 AD3d 597, 598 [1st Dept 2008]; Murphy v Columbia University, 4 AD3d 200, 202 [1st Dept 2004]).

Pinnacle does not dispute that its contract with Wing required that Pinnacle defend and indemnify Wing and Skanska, and obtain commercial liability insurance coverage and name them as additional insureds. Pinnacle asserts that its insurer has accepted a tender of defense and indemnification but that the takeover of the defense has not been "facilitated" due to ongoing settlement negotiations related to legal fees for defense costs. Pinnacle's subcontract provides that Pinnacle indemnify Wing and Skanska if the claim of injury arose out of or resulted from Pinnacle's work under the subcontract. Plaintiff's injury "arose out of" Pinnacle's work, as that term has been construed (see Brown v Two Exchange Plaza Partners, 76 NY2d 172, 178 [1990]; Alleva v United Parcel Serv., Inc., 96 AD3d 563, 565 [1st Dept 2012]; cf. Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38 [2010] ["We have interpreted the phrase arising out of' in an additional insured clause to mean originating from, incident to, or having connection with' (internal quotation marks and citations omitted)]). It is required only that there be some causal relationship between the injury and the risk for which coverage is provided'"]). Given that Skanska and Wing did not supervise and control the injury-producing work, that those defendants were not actively negligent, and that any liability on their part under Labor Law § 241 (6) would be vicarious, Skanska is entitled to conditional contractual indemnification against plaintiff's employer, third-party defendant Pinnacle (see General Obligations Law § 5-322.1 [i], Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 n5 [1997]; Santos v BRE/Swiss, LLC, 9 AD3d 303, 304 [1st Dept 2004]), and defendants Skanska and Wing are entitled to defense costs from Pinnacle. Insofar as that branch of the motion by Skanska and Wing has not been withdrawn, summary judgment should be granted to Skanska as to contractual indemnification and to Skanska and Wing as to defense costs.

Insurance coverage was seemingly obtained by Pinnacle for Skanska and Wing, and Skanska and Wing have not made a showing that coverage was not obtained. Therefore, the branch of the motion seeking summary judgment based upon a failure to name them as additional insureds was not granted (cf. Perez v Morse Diesel Intl., Inc., 10 AD3d 497, 498 [1st Dept 2004] [where the third-party defendant showed that it had purchased a liability policy, and thus there was no breach of contract]; Garcia v Great Atl. & Pac. Tea Co., 231 AD2d 401, 401 [1st Dept 1996]) [FN3] .

Accordingly, by separate decisions and orders, the motions were granted to the extent of awarding defendants-movants summary judgment dismissing the Labor Law §§ 200 and 240 (1), and common law claims, and all cross claims and counterclaims, and dismissing the Labor Law § 241 (6) claim, except as against Skanska founded on Industrial Code section 23—1.30. Furthermore, Skanska and Wing's motion was granted awarding them summary judgment to the extent that Pinnacle was also ordered to indemnify and defend Skanska, and to pay Skanska and Wing's defense costs.

Dated: New York, New York

September 19, 2016

RICHARD F. BRAUN, J.S.C. Footnotes

Footnote 1:Defendant JVN Restoration, Inc. was previously granted summary judgment dismissing the complaint and all cross claims against it by decision and order, dated March 20, 2014, and opinion, dated March 21, 2014. Claims against defendant Champion Construction Corp. were discontinued pursuant to stipulation, filed September 2, 2015.

Footnote 2:However, this would not necessarily preclude a common law negligence claim (see Urban v. No. 5 Times Sq. Dev., LLC, 62 AD3d at 554 ).

Footnote 3:Skanska and Wing seek indemnification, defense, costs, and attorneys' fees under the third cause of action in the third-party complaint due to the alleged violation by Pinnacle of its obligation to obtain insurance coverage for Skanska and Wing (see Kinney v Lisk Co., 76 NY2d 215 [1980]). However, for any such violation, if Skanska and Wing obtained their own insurance coverage, they would not have been entitled to recover anything other than their out-of-pocket costs caused by any breach by Pinnacle (see Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111, 114-116 [2001]). The request for recovery beyond that, as done here and regularly sought by many parties in other actions, would be frivolous under certain circumstances.