Pereira v Hunt/Bovis Lend Lease Alliance II

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Pereira v Hunt/Bovis Lend Lease Alliance II 2017 NY Slip Op 31828(U) July 21, 2017 Supreme Court, Queens County Docket Number: 13985/2008 Judge: Denis J. Butler 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] 1398512008 ORDER SIGNED SEQUENCES '1 #2ANO 13 Poge 1 of8 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE DENIS J. BUTLER Justice lAS Part 12 x JOIIN PERElRA. as Trustee of TRICIA ROWAN. debtor. Index Number: 13985/2008 Plaintiffs. -against- Motion Date: April 21. 2016 HUNT/BOVlS LEND LEASE ALUANCE ll. A JOINT VENTURE. HUNT CONSTRUCTION GROUP. lNC .. BOYIS LEND LEASE. INC.. QUEENS BALL PARK COMPANY. LLC. METS DEVELOPMENT COMPANY. LLC. and 5 STAR HARDWARE & ELECTRIC CORPORATION. Seq. Nos. I, 2 & 3 r-·-.... -··--·-- - ·-·--------· ! rr ,. FC' ! I L- ·-----1 JUL 2 5 2017 (, ···.:,: ' )' • . . , . ' ,., - -- ---- .:._ ~_·_.:: _.,_.:_ _: ~----_ f j _ Defendants. x The following papers numbered I to 41 were read on the (I) motion hy Five Star Ele<.:tric Corp. (Five Star). to dismiss the complaint. insofar as asserted against it. and to dismiss the cross claims asserted by I lunt/Bovis Lend Lease Alliance II (.. I lunt/Bovis··). Queens Ballpark Company. LLC (..QBC.. ). and Mets Development Company. LLC (··MDC .. ): (2) motion by Hunt/Bovis. QBC and MDC (herein... the owner defendants .. ). for summary judgment in their favor dismissing the complaint pursuant to CPLR 3212: and (3) motion by plaintiff for partial summary judgment in her favor on her claim pursuant to Labor Law section 241 (6}. [* 2] 139e5/2008 ORDER SIGNE:> SEQUENCES 11 112 AN O llJ Pi19" 2 ol 8 Papers Numbered De fondant Five Star's Notice of Motion. affidavits and exhibits................ I-7 Owner Defendants' Notice of Motion. affidavits and exhibits ........................................................... ............ 8-1 I Plaintiffs notice of motion. affirmation. exhibits and aftidavit.. ............... I 2-15 Owner Defendants· affirmation in partial opposition to Five Star's motion. affidavit. ...................................................... ...... 16-17 five Star's affirmation in partial opposition to Owner Defendants· Motion. affidavits. exhibit.. ............................................... ................ 18-21 Owner Defendants' affirmation in opposition to plaintiff. affidavit.. .......... 22-23 . . m .. I , · 1 av1t.. Pl amtt"ff' s a ffiirmat1on . oppos1t1on and rep). a t'fid· . .......................... ..?4 --- ?" Five Star's affirmation in opposition to plaintiff. affidavits. cxhibits .. ........ 26-29 Plaintiffs affirmation in reply to Five Star. aftidavit.. ................................. 30-3 1 Owner Detendants· reply to plaintiff. aftidavit.. ..........................................32-33 Owner Defendants· reply to Five Star. aftidavit.. ......................................... 34-35 Five Star's reply to plaintiff. affidavit. ......................................................... 36-37 Upon the foregoing papers it is ordered that the motions are detennined as follows : Plaintiff in this labor law/negligence action seeks damages for personal injuries sustained on October 3. 2007. when Tricia Rowan tripped and fell over electrical cables as she walked to her work area. The project consisted of the construction of the home stadium of the New York Mets. which was owned by QBC. Bovis was the constructi on manager/general contractor for the project. Rowan was employed as an apprentice steamfitter for non-party Rae l Automatic Sprinkler Co. (.. Rael .. ). a subcontractor retained hy I lunt/Bovis to perform sprinkler work at the project. Bovis also retained Five Star as a subcontractor to perform electrical work at the project. Plaintiff alleges that defendants were negligent and that they violated New York Labor Law. sections 240. 24 1[6] and 200. As noted above. defendants move for summary judgment in their favor dismissing all claims against them: and defendant I lunt/Bovis moves for summary judgment on their claims for contractual indemnification from Five Star. Plaintiff moves for summary judgment in PlaintitTs favor on the Labor Law 241 (6) claims. 2 P"'"8d 8l29l20 17 [* 3] 1398512008 ORDER SIGNED SEOUENCCS #1 '2AN O13 Poge3ol8 Rowan testified upon an examination before trial. as follows : she was an emplO)CC of Rael Automatic Sprinkler Co. when she tripped and fell over electrical cahles as she walked to her work area. On the morning of the accident. Rowan reported to the Rad shanty. where she met with tellow co-workers. She followed her co-workers to their work area. which required them to walk up a flight of stairs. across a concrete floor. and then across a span of corrugated metal decking material. commonly cal led ..Q-decking:· Pia inti ff walked across the Q-decking. placing each foot on the raised portion of the Q-decking. \\ ith the troughs in between. At some point. the Q-decking ended and there was a step down of approximately fourto six inches to a lower level ofQ-decking. The lower level ofQ-decking had a .. mess .. of cables running across it. There were no trades working on the Q-dccking at the time of the incident. Rowan testified that she stepped down and onto the lower level of Q-decking and when she did so. her foot ..got caught" in the cables. When her foot got caught. Rowan tell over onto her side and came into contact with the Q-decking and a piece of uncapped rebar. Plaintiff testi tied that walking across the Q-decking was ..the only way to go .. to the Rael work area. which was on a concrete section beyond the Q-decking. Rowan stated that she had walked across the Q-decking and cables on the day prior to the incident. without any problems. Five Star was a subcontractor at the project and performed electrical work beginning in October 2006 pursuant to a contract it entered into with the general contractor. I lunt/Rovis. Donald Hession. an electrical foreman for Five Star at the project. testi tied upon an examination before trial. and submitted an affidavit indicating the following: Jn his position he was responsible for the installation of cables on the Q decking. Hession described the installation as a .. typical installation . .. not anything out of the ordinary. . :· The Q decking is a corrugated steel deck, and was installed by another subcontractor at the project. not Five Star. Five Star installed the cables on the Q decking where the accident occurred at the beginning of August of2007. approximately two months priorto the accident. The purpose of the cables was to provide power to lighting and signs. Hession avers that after the cables were installed on the Q decking. they were inspected by both Hunt/Bovis and a structural engineer. Once approved. Five Star's installation of the cables was complete. Concrete is then poured on the top of the Q decking and the cables become permanently embedded in the structure of the flooring. Five Star did not coordinate or perform the concrete pour. nor was it responsible for doing so. Anthony Falzone. the electrical superintendent for Hunt/Bovis. oversa\.v the electrical installation by Five Star. Falzone would walk the pr~ject and inspect the electrical work. make sure that the work was done in a timely manner and coordinate the work between the 3 Pnntad 812912017 [* 4] 1398512DOe ORDER SIGNED SEOVENCES t1 . f2 MD13 electricians and other trades. Falzone had the authority to stop the electrical work if he observed an unsafe condition. It was also Falzone·s responsibility to oversee the installation of the cables by Five Star. Falzone testified that once the cables were placed on the Q-decking. Five Star ··would have no reason to touch them:· According to Falzone. the cables were installed by Five Star in accordance with Five Star's shop drawings. When shown photographs of Five Star's installation of the cables on the Q-decking. Falzone testified that the cables were .. installed appropriately:· Falzone stated that Five Star·s placement of the cables atop the Q-decking was .. not a concern.. of Falzone·s. Plaintiffs co-workers Sean Patrick Healy. Martin Debobcs. and Robert Steffens all submitted written statements indicating that plaintiff ..slipped.. on a wet condition on the premises. Article 12 of Five Star's contract with Hunt/Bovis provides that Five Star shall defend.indemnify and hold harmless QBP and Hunt/Bovis for all claims which arise or result from or occur in connection with Five Star's perfom1ance of its work. Claims against MDC The Court grants as unopposed the branch of the owner Defendants· motion to dismiss all of the claims asserted against Defendant Mets Development Company. LLC (.. MDC .. ). on the grounds that MDC had no involvement in the project that allegedly gave rise to Plaintiffs injuries. Labor Law § 240( I) Claims The branch of Defendant Five Star' s motion and of the owner Defendants· motion to dismiss plaintiffs claim pursuant to Labor Law § 240( I). is granted as unopposed and otherwise on the merits. It is undisputed that plaintiff fell at ground level and an elevationrelated risk was not implicated. Therefore. the§ 240( I) claim fails. (See Canning v Barney's New York. 289 AD2d 32. 33 f I st Dept 200 I]). Labor Law§ 241(6) Claims Labor Law§ 241 (6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in. or lawfully frequenting. all areas in which construction. excavation or demolition \\ork 4 Pnr>ted 812912017 [* 5] 1398512008 ORDER SIGNED SEQUENCES f l '2 AND '3 Poge Sof8 is being performed (see Rizzuto v L.A. Wenger Comr. Co .. 91 NY2d 343. 34811998 j: Ross v Curlis-Palmer Hydro-Elec. Co., 81 NY2d 494. 501-502 f 1993 I: Brownrigg v New York City Hous. Auth .. 119 AD3d 504 [2014 j). The provision requires owners and contractors to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Misicki v Caradonna. 12 NY3d 511. 515 120091: Ross v CurtisPalmer Hydro-Elec. Co .. 81 NY2d at 505). The particular safety rule or regulation relied upon by a plaintiff must mandate compliance with concrete specifications. and not simply set forth general safety standards (see Misicki v Caradonna. 12 NY3d at 515: Ross v CurtisPalmer Hydro-Elec. Co .. 81 NY2d at 504-505). Comparative negligence is a valid defense to a Labor Law~ 241(6) cause of action (see Misicki v Caradonna. 12 NY3d at 515: Long f v Forest-Fehlhaber. 55 NY2d 154. 161 [ 19821: Rif o-Velozo v Village ofScarsdale. 68 J\D3<l 839 (20091). * llere, the cause of action alleging a violation of Labor Law 241 (6) is predicated. in part, on Industrial Code ( 12 NYCRR) ~ 23-1.7 (c) (2). which provides that ··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 and from sharp projections insofar as may be consistent with the work being performed:· ( 12 NYC RR 231.7 leJ [2]}. This section is sufficiently specific to support a cause of action to recover damages pursuant to Labor Law~ 241(6). (See White v Village o_(Port Chester. 92 AD3d 872. 877 [2012]; lane v Frate!lo Constr. Co .. 52 J\D3d 575. 576 [20081.) However. it has no application where the object that caused the plaintiff's injury was an integral part of the work being performed. (See Castillo v Starrett City. 4 AD3d 320. 322 12004]: Harvey v Morse Diesel Intl .. 299 AD2d 45 l . 452-453 12002]: Alvia v Teman Elec. Contr .. 287 J\D2d 421. 423120011.) The branches of the parties· respective motions seeking summary judgment on plaintiffs Labor Law§ 241(6) claim. predicated upon a violation of Industrial Code§ 231.71 e]. are denied. There exist triable issues of fact as to whether the conditions allegedly causing Rowan ·s injury were .. integral .. to the construction project. The evidence establishes that the electrical cable over which Rowan tripped was to be covered by concrete and become a permanent part of the floor structure. However. Plaintiff contends that the .. mess .. of wires should have been bundled, and that the rebar should have been capped. In light of the questions of fact as to whether the complained-of conditions were ··integral .. to the pn~jcct. summary judgment is inappropriate. (See Rizzo v HRH Construcrion Corp.. 30 I J\D2<l 426 [ l ' 1 Dept. 2003 ]). The branches of Defendants· motions to dismiss plainti tr s Labor Law~ 24 1(6) claim predicated on a violation of Industrial Code§ 23-l .7(d). is granted. and Plaintifrs motion 5 Pmted ~1 7 [* 6] 1398512008 ORDER SIGNED SEQUENCES f1 #2ANO1:1 Poge 6 of 8 for summary judgment is denied. Rowan unequivocally testi tied that she tripped. not sl ippcd on the electrical cables. and section 23-l.7(d) pertains to slipping hazards. Plaintiff later submitted evidence in the fonn of affidavit[ sl indicating that a slippery condition caused Rowan to fall. However. these claims are contrary to her prior deposition testimon)'. and the court rejects them as an attempt to create feigned issues of fact designed to avoid the consequences of the earlier testimony (see Sunshine Care Corp. v Warrick, l 00 AD3d 981. 983 (2d Dept 2012]; see generally Soussi v Gobin. 87 A03d 580. 58 l- 582 j2d Dept 20111: Vela v Tower Ins. Co. of NY. 83 AD3d I050. I 051 f2d Dept 2011 J). The branches of Defendants· motions to dismiss plaintiffs* 241 (6) claims predicated upon any other regulations. are granted without opposition. Labor Law § 200 and Negligence Claims Labor Law ~ 200 codifies the common-law duty of an owner or general contractor to provide employees with a safe place to work. (Comes v New York State Elec. & Gas Corp.. 82 NY2d 876. 877f1993)). Liability pursuant to Labor Law~ 200 may fall into two broad categories: workers ..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 A03d 54, 6 I [2d Dept 2008]). Here. Rowan alleged that she was injured as a result of a dangerous or defective condition at the work site. rhc branch of Five Star's motion to dismiss the Labor Law* 200 against it is granted. as Five Star has established prima facie that it was not a property owner. general contractor. or statutory agent of the general contractor. with respect to the subject project. Five Star established. prima facie. that it did not have authority to supervise or control the area of the work site where the plaintiff was injured. (See Martinez v City ofNew York. 73 AD3d 993. 998 [2d Dept 20 IO]). In opposition. the plaintiff failed to raise a triable issue of fact. (Ortiz v l.B.K. Enterprises. inc .. 85 AD3d 1139. 1140 l2d Dept 201 lj.) However, the branch of Five Star's motion seeking dismissal of the Plaintitrs common law negligence claims is denied ...[Al subcontractor ... may be held liable for negligence where the work it perfonned created the condition that caused the plainti tTs injury even if it did not possess any authority to supervise and control the plainti ft's "'ork or work area .. (Tabickman v Batchelder St. Condominiums By Bay. LLC. 52 AD3d 593. 594 l2d Dept 20081: see also Tomyuk v Junefield Assoc .. 57 AD3d 518. 522 [2d Dept 2008 I). ··An award of summary judgment in favor of a subcontractor dismissing a negligence cause of action is improper where the evidence raise [s] a triable issue of fact as to whether Ithe subcontractor's I employee created an unreasonable risk ofhann that v1as the proximate cause 6 Pnn1ed 8l29l20 I 7 [* 7] Pogo 7 of e 1398512008 ORDER SIGNED SEQUENCES 41 42 ANO "3 of the injured plaintiffs injuries ... (Poracki v St. M01y's R.C. Church. 82 AD3d 1192. 1195 [2d Dept 2011].) Here. the evidence raises triable issues of fact as to whether the alleged!) unbundled "mess.. of wires laid by the subcontractor created an unreasonable risk of harm that was the proximate cause of Rowan· s injuries. * The branches of the owner Defendants· motion seeking to dismiss the Lahor Law 200 and common law negligence claims asserted against them. are denied. The owner Defendants fail to meet their prima facie burden of establishing their freedom from negligence. arguing merely that the condition complained of was ..open and obvious:· This factor alone is insufficient as a matter of law to establish the owner Defendants· freedom from negligence. (See. e.g., Cupo v Karfunkel. 1 AD3d 48 l2d Dept 20031.) Owner Defendants· Cross-Claims against Five Star The branch of Five Star's motion seeking dismissal of the owner Defendants· crossclaim for breach of contract is granted. as unopposed and otherwise on the merits. Fi ve Star proffers evidence to establish prima facie that it satisfied its contractual obligation to obtain the requisite insurance. and in opposition the owner Defendants do not raise a triable issue of fact. With respect to the remainder of owner Defendants· cross-claims against Five Star. neither Five Star nor the owner Defendants have established their entitlement to summary judgment. as there exists a triable issue of fact as to whether Rowan·s injuries were caused by Five Star's negligence. Thus. the branch of owner Defendants' motion seeking summary judgment on their contractual indemnification claim is denied as premature. as there has not been a finding of negligence on the part of Five Star. The branch of Five Star"s motion seeking di smissal of the contractual indemnification. common law indemnification. and common law contribution claims is denied. (See Crespo v. City of Neu· York. 303 A.D.2d 166. 756 N.Y.S.2d I 83). Conclusion The branches of the motions by defendants which are to dismiss plaintiffs claim pursuant to Labor Law section 240[ 11. are granted without opposition. The branches of the motions by defendants which are to dismiss plaintitrs claim pursuant to Labor Law section 241161. predicated upon a violation of* 23-1.7 (e) (2). ar~ denied. The branches of the motions by defendants which are to di smiss plaintiffs claims pursuant to Labor Law section, 24 1[6 ], predicated upon any other regulatory violations. are granted. 7 Pnnled lll29l20 I 7 [* 8] Pogo 8 of 8 13116512008 ORDER SIGNED SEOUEM:.ES ti '2 AND 113 The branches of the motion by the owner defendants which are to dismiss the causes of action alleging common-law negligence and a violation of Labor Law ~ 200. is denied. The branch of the motion hy defendant Five Star which is to dismiss the cause of action alleging a violation of Labor Law § 200 against Five Star. is granted. The branch of the motion by defendant Five Star which is to dismiss the cross-claim for breach of contract. is granted without opposition. The branch of the motion by defendant Five Star which is to dismiss the cross-claims for contractual indemni ti cation. common law indemnification. and common law contribution. is denied. The branch of the motion by the owner defendants which is for summary judgment on its claim for contractual indemnification. is denied as premature. The branch of the motion by owner defendants for summary judgment dismissing all claims against Mets Development Company LLC is granted without opposition. The motion by plaintiff for partial summary judgment in her fa vor on her claims pursuant to Labor Law section 24 I (6 ). is denied. This constitutes the Decision and Order of the Court. Dated: July 11. 2017 Denis J. Butler. 1.s.c. r----..._ I ' ·-·.--·.._ ; . . ·'.F,""l ·-.. --~ JUL 2 5 I --------..·:·'.·;~· , . .: --....... . --.......... • / I -.... I ;' 2011 -·- _-.._ , .... 8 Pnnttd 8l29t20 ,7

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