Gonzalez v J.B. Indus., Inc.

[*1] Gonzalez v J.B. Indus., Inc. 2016 NY Slip Op 51334(U) Decided on September 6, 2016 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2016
Supreme Court, Queens County

George Gonzalez, Plaintiff(s),

against

J.B. Industries, Inc., MECHOSHADE SYSTEMS, INC., MECHOSHADE INTERNATIONAL SALES CORP., and RACANELLI CONSTRUCTION COMPANY, INC., Defendant(s).



8820/14
Robert J. McDonald, J.

The following papers numbered 1 to12 read on this motion by defendant J.B. Industries, Inc., defendant Mechoshade Systems, Inc, and defendant Mechoshade International Sales Corp. for summary judgment on their cross claims for contractual indemnification and breach of contract to procure insurance and on this cross motion by plaintiff George Gonzalez for summary judgment on his complaint.

Papers Numbered

Notice of Motion - Affidavits - Exhibits 1

Notice of Cross Motion - Affidavits - Exhibits 2

Answering Affidavits - Exhibits 3-10

Reply Affidavits 11-12

Upon the foregoing papers it is ordered that the motion and cross motion are denied.

I. The Plaintiff's Cross Motion for Summary Judgment

A. The Facts

Defendant Mechoshade Systems, Inc., defendant Mechoshade International Sales Corp., [*2]and defemdant JB Industries, Inc. (collectively Mechoshade) own premises known as 35-12 Skillman Avenue, Long Island City, New York..

Defendant Mechoshade hired defendant Racanelli Construction Company, Inc. to act as the general contractor/construction manager for the renovation of a building on its premises. Racanelli, in turn, subcontracted HVAC work to third party defendant Sav-Mor Mechanical, Inc.

Plaintiff George Gonzalez alleges the following: On July 13, 2011, while working at the premises as an employee of Sav-Mor Mechanical, Inc., he sustained personal injury as he climbed off a ladder and stepped on a nail sticking out from a piece of wood.

On the day of the accident, Gonzalez informed Chris Okolski, the job superintendent for Racanelli, that he would be doing duct work on the second floor. Gonzalez went to the second floor, but before he began working, he informed Okolski that he had noticed a lot of debris left over from demolition work laying on the floor. Gonzalez requested that Okolski have someone clean up the debris, but the job superintendent did not act on his request. Okolski could see the debris because he was sitting at a desk a short distance away from where the plaintiff was working. No one cleaned up the debris which included metal, sheet rock, and wood with nails sticking up. Nevertheless, Gonzalez began his job, even though, according to Gandolfo Schiavone, a principal of Sav-Mor, Gonzalez had been trained not to begin work in an area which he felt was unsafe because of debris.

At his deposition, Gonzalez testified that before his accident, he had seen pieces of molding with protruding nails lying on the floor and that he had attempted to move the molding away from him with the legst of his ladder. He further testified that he gave a "little quick look" down to his left as he stepped off the ladder and that he knew that he was stepping onto the debris.

Mechoshade employed Chris Wilson as a project manager to oversee the renovation of the building. Wilson was at the worksite every day, and he dealt with Bob Latuga, a project manger for Racanelli. As part of Wilson's duties, he tried to ensure that the renovation work would qualify for "leadership and energy and environmental certification" (LEED certification), and some of the LEED requirements concerned the recycling of construction debris. The contractors had to separate wood debris from metal debris, and Mechoshade directed Racanelli on how to make the separation. The contractors separated the wood from the metal by hand and then put the materials into containers, not dumpsters. Wilson walked through the building on a daily basis, and, if he saw a problem with the debris, he would talk with people from Racanelli about it. On his daily walks, Wilson would check to see if Racanelli was properly sorting the debris into separate piles.

Racanelli employed Chris Okolski as its job superintendent in July, 2011, and he supervised the work on a daily basis. Racanelli employed laborers on the job site who had general clean-up duties, but they were not required to clean up debris every day. Okolski had the duty of making sure that the demolition contractor cleaned up where it had been working, and if it did not do so, Okolski would direct the demolition contractor to return to the worksite. He also instructed workers not to work in areas that had not been properly cleaned up by the demolition contractor. Okolsk walked through the job site on a daily basis looking for unsafe conditions.

B. The Causes of Action Based on Common Law Negligence and Labor Law §200

"To prove a prima facie case of negligence, the plaintiff must prove the existence of a duty on the defendant's part to the plaintiff, the breach of the duty, and that the breach of the duty was a proximate cause of an injury to the plaintiff***." (Gordon v Muchnik, 180 AD2d 715.) The common law imposes a duty upon an owner and a general contractor to provide a worker with a safe place to work. (See, Comes v New York State Electric and Gas Corp.,82 NY2d 876; Torres v. Perry Street Development Corp., 104 AD3d 672.) "Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work." (Comes v New York State Electric and Gas Corp.,, 82 NY2d 876, 877; Chowdhury v. Rodriguez , 57 AD3d 121). The principles of common law negligence determine liability under the statute.(Chowdhury v. Rodriguez, supra.) The duty owed may be violated in two ways: (1) through the defective condition of the premises itself and (2) through a danger arising from the worker's activities where a party has supervisory control. (See, Smith v. Nestle Purina Petcare Co., 105 AD3d 1384; Clavijo v. Universal Baptist Church, 76 AD3d 990; LaGiudice v. Sleepy's Inc., 67 AD3d 969.) Where a worker sustains an injury because of a defective condition on the premises, a property owner or general contractor is liable for common law negligence and a violation of Labor Law § 200 when the defendant created the dangerous condition which caused the injury or when the defendant failed to remedy the dangerous condition of which he had actual or constructive notice. (Mikelatos v. Theofilaktidis, 105 AD3d 822 [general contractor]; LaGiudice v. Sleepy's Inc., 67 AD3d 969 [owner]) Unlike injuries arising from the method of work, where the injury arises from a condition of the job site, it is not necessary to prove supervision and control over the worker. (Urban v. No. 5 Times Square Development, LLC, 62 AD3d 553; Murphy v. Columbia University, 4 AD3d 200.)

"[T]he proponent of a summary judgment motion 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 ***." ( Alvarez v. Prospect Hospital, 68 NY2d 320, 324.) Plaintiff Gonzalez successfully carried this burden. Chris Wilson, employed by Mechoshade as its project manager, admitted seeing piles of debris at the work site on a regular basis, thus permitting the inference of constructive notice of a recurrent dangerous condition (see, Bray v. McGillicuddy's Tap House, Ltd., 41 AD3d 1069; Camizzi v. Tops, Inc., 244 AD2d 1002), and the plaintiff tesified that Chris Okolski, employed by Racanelli as its job superintendent, saw the debris on the floor where he was working. The plaintiff established prima facie that the defendants had either actual or constructive notice of the defective condition at the worksite. (See, Marcano v. Hailey Dev. Grp., LLC, 117 AD3d 518). The plaintiff established prima facie that the debris was visible and apparent and that it existed for a sufficient length of time before the accident to permit the defendants to discover and remedy it. (See, St. John v. Westwood-Squibb Pharm., Inc, 138 AD3d 1501 [debris].) The plaintiff also showed prima facie that the defendants created the defective condition on the premises. (See, Murphy v. Columbia Univ., 4 AD3d 200.) Mechoshade insisted that debris be placed in sorted piles and left for a time on the floor so that the defendant could obtain LEED certification, and Racanelli supervised the procedure. The debris was not taken away from the job site as soon as possible, but rather left on the floor for sorting.

The burden on this motion shifted to its opponents, and they were required to produce [*3]evidence showing that there is a genuine issue of fact which must be tried. (See, Alvarez v. Prospect Hospital, supra.) They successfully carried this burden. Summary judgment is not warranted where issues of comparative negligence must be tried. (See, Maniscalco v. New York City Transit Auth., 95 AD3d 510.) A cause of action based on Labor Law §200 is subject to the defense of comparative negligence. (Siragusa v. State, 117 AD2d 986; see, Landahl v. City of Buffalo, 103 AD3d 1129; Tulovic v. Chase Manhattan Bank, N.A., 309 AD2d 923; Jamison v. GSL Enterprises, Inc., 274 AD2d 356.) In the case at bar, there is evidence in the record that the danger of working in an area with nails sticking up from wooden debris strewn on the floor was open and obvious (see, Tulovic v. Chase Manhattan Bank, N.A., supra), that the plaintiff went to work in an area that he felt was unsafe despite training not to do so, and that he failed to carefully observe where he stepped off the ladder. This evidence has created issues of fact pertaining to his comparative negligence which preclude summary judgment. (See, Tulovic v. Chase Manhattan Bank, N.A., supra.)

C. The Cause of Action Based On Labor Law §241(6)

Labor Law §241(6) provides, inter alia, that areas in which construction, excavation or demolition is being performed shall be "guarded, arranged, operated, and conducted" in a manner which provides "reasonable and adequate protection and safety to the persons employed therein," that the Commissioner of Labor may make rules to implement the statute, and that owners, contractors, and their agents shall comply with them. (See, Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343.) The duty imposed by Labor Law § 241(6) upon owners and contractors is nondelegable. (Rizzuto v. L.A. Wenger Contracting Co., Inc., supra; Comes v New York State Electric and Gas Corp., 82 NY2d 876) Because an owner's or general contractor's liability under Labor Law § 241(6) is vicarious, notice of the hazardous condition is irrelevant. (Burnett v. City of New York, 104 AD3d 437.)

A cause of action based on Labor Law §241(6) is subject to the defense of comparative negligence. (Siragusa v. State, 117 AD2d 986.) In the case at bar, there are issues of fact concerning the plaintiff's own comparative negligence which preclude summary judgment. (See, Fazekas v. Time Warner Cable, Inc., 132 AD3d 1401; Smith v. Robert Marini Builder, Inc., 83 AD3d 1188; Baumann v. Metro. Life Ins. Co., 17 AD3d 260; Daniels v. Potsdam Cent. School Dist., 256 AD2d 897; Puckett v. County of Erie, 262 AD2d 964.)

II. The Motion by Mechoshade For Summary Judgment

A. The Facts

The Contract between Mechoshade and Racanelli contained a broad indemnification clause in favor of the former: "To the fullest extent permitted by law *** the Construction Manager shall indemnify and hold harmless the Owner *** and agents and employees of any of them from and against claims *** arising out of or resulting from the performance of the work ***but only to the extent caused by the negligent acts or omissions of the Construction Manager, [*4]a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder."

The subcontract between Racantelli and Sav-Mor contained an insurance procurement clause: "Subcontractor *** shall, at their own expense, maintain in effect with insurers satisfactory to General Contractor ***minimum insurances as described below." *** Commercial General Liability Insurance *** providing limits notless than $1,000,000 each occurrence ***. *** Commercial Umbrella ***. Limits should be provided not less than $5,000,000." Sav Mor was required to name Mechoshade as an additonal insured.

B. The Cause of Action for Contractual Indemnification

Summary judgment on a cause of action for contractual indemnification is premature where the liability of the parties has not been resolved. (See, Farduchi v. United Artists Theatre Circuit, Inc., 23 AD3d 613.) "The right to contractual indemnification depends upon the specific language of the contract ***." (George v. Marshalls of MA, Inc., 61 AD3d 925, 930; Martinez v. City of New York, 73 AD3d 993.) In the case at bar, the contractual indemnification clause, insofar as relevant, requires indemnification only for the negligence of Racanelli and parties for which it is liable, and summary judgment before the negligence of the parties, if any, has been determined would be premature. (See, Farduchi v. United Artists Theatre Circuit, Inc., supra.) Moreover, there are triable issues of fact pertaining to whether Mechoshade was negligent, and, if so, to what extent, and, therefore, it would be premature to decide whether the indemnification clause violates General Obligations Law §5-322.1. (See, Tingling v. C.I.N.H.R., Inc., 120 AD3d 570; Marano v. Commander Elec., Inc., 12 AD3d 571.) "[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor ***." (Cava Const. Co. v. Gealtec Remodeling Corp., 58 AD3d 660, 662; see General Obligations Law § 5—322.1; Brooks v. Judlau Contracting, Inc., 11 NY3d 204; Mohan v. Atl. Court, LLC, 134 AD3d 1075.)

C. The Cause of Action for Breach of Contract to Procure Insurance

A party seeking summary judgment on a cause of action for breach of contract to procure insurance must show that a contract provision required insurance to be procured and that the provision was not complied with. (See, DiBuono v. Abbey, LLC, 83 AD3d 650; Rodriguez v. Savoy Boro Park Associates Ltd. Partnership, 304 AD2d 738.) In the case at bar, Mechoshade alleges that it is a third party beneficiary of the clause in the subcontract between Racantelli and Sav-Mor requiring the procurement of insurance, but no coverage has been provided. Sav-Mor alleged in its opposition papers that "[n]o notice of claim and tender of coverage was ever sent to Utica National Insurance, the general liability carrier of Sav-Mor." Mechoshade refuted this allegation by attaching a copy of a letter from Utica National Insurance to Traveler's Insurance, Mechoshade's insurer, which states in relevant part: "Utica National Assurance Company acknowledges receipt of your letter dated May 7, 2012 and received in this office on May 10, 2012 in which you are tendering the defense and indemnification of your insureds ***." [*5]Nevertheless, Mechoshade, did not establish its entitlement to summary judgment. Mechoshade did not show that Sav-Mor failed to name it as an additional insured or that the coverage obtained did not conform to contractual requirements. Moreover, the letter from Utica does not seem to be a final denial of coverage, but rather a request for more information: "We have not been provided with a copy of the contract*** so that we may determine the contractual provisions agreed to by our insured. Should you be able to produce a contractual indemnification agreement *** please promptly forward for our review. *** Additional discovery would be required to determine if the occurrence resulted from independent acts or omissions of [Mechoshade] **."

Dated: September 6, 2016
Long Island City, NY
ROBERT J. McDONALD
J.S.C.