Maloney v Skanska USA Civil Northeast Inc.

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Maloney v Skanska USA Civil Northeast Inc. 2017 NY Slip Op 33075(U) July 20, 2017 Supreme Court, Rockland County Docket Number: 030879/14 Judge: Gerald E. Loehr Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ROCKLAND COUNTY CLERK 07/25/2017 07:30 AM NYSCEF DOC. NO. 203 INDEX NO. 030879/2014 RECEIVED NYSCEF: 07/24/2017 To commence the statutory time period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -----------------------------------------------------------------)( JAMES J. MALONEY Plaintiff, DECISION AND ORDER Index No.: 030879/14 -againstSKANSKA USA CIVIL NORTHEAST INC., TULL Y CONSTRUCTION CO. INC. and SKANSKAITULLY JV, URS CORPORATION, MALCOLM PIRNIE, INC., URS/MALCOLM PIRNIE, JOINT VENTURE, SCHIAVONE, CONSTRUCTION, CO. LLC, JOHN P. PICONE, INC., and SCHIAVONE/PICONE JOINT VENTURE, Defendants. ------------------------------------------------------"---------------)( SKANSKA USA CIVIL NORTHEAST INC., TULLY CONSTRUCTION CO. INC., and SKANSKAITULL Y JOINT VENTURE, Third-Party Plaintiffs, -againstSIEMENS ELECTRICAL, LLC, f/k/a SCHLESINGER-SIEMENS ELECTRICAL, LLC, Third-Party Defendant. --------------------------------------------------------------------------)( MALCOLM PIRNIE, INC. and URS CORP. GROUP CONSULTANTS, individually and as a member of the URS CORPORA nON/MALCOLM PIRNIE, INC" JOINT VENTURE, Second Third-Party Plaintiffs, -againstSIEMENS ELECTRICAL, LLC, f/k/a SCHLESINGER-SIEMENS ELECTRICAL, LLC, Second Third-Party Defendant. ----------------------1 of 4 )( [*FILED: 2] ROCKLAND COUNTY CLERK 07/25/2017 07:30 AM INDEX NO. 030879/2014 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 07/24/2017 LOEHR, J. The following summary judgment papers numbered dismissing 1- 13 were read on motions the Complaint of all Defendants for and all Third Party Complaints. Papers Numbered Notice of Motion (#2) - Affirmation Memorandum of Law in Support 2 Notice of Motion (#5) - Affirmation Memorandum Memorandum 3 4 - Exhibits 5 of Law in Support 6 Notice of Motion (#3) - Affirmation Memorandum - Exhibits 7 of Law in Support in Partial Opposition Reply Affirmation Reply Affidavit Affirmation - Exhibit of Law in Support Notice of Motion (#4) - Affirmation Affirmation - Exhibits 8 to Motion #5 9 re Motion #5 10 re Motion #5 in Opposition Reply Affirmation II re Motion #2 - Exhibits 12 re Motion #2 Upon the foregoing York City Department 13 papers, it appears that commencing of Environmental Protection (the "DEP") various aspects of work on the Croton Water Treatment retaining a General Contractor, as the concrete, retained Schiavone construction/tunneling Consultants Siemens Electrical, structural, Construction Inc./Tully steel, architectural Rather than itself. Thus, DEP retained the Construction Co. Inc./Skanska/TullyJV and mechanical prime contractor. DEP retained the joint venture ofURS Pimie, Inc. ("URS") LLC ("Siemens") with E-J Electric ("E-J"). Plant (the "Project"). Co. LLC and the joint venture of Schiavone/Picone contractors. and Malcolm sought bids with respect to DEP retained the prime contractors joint venture of Skanska USA Civil Northeast ("Skanska") in and around 2000, the New for management as the prime electrical Plaintiff was an electrician construction contractor. employed as Corporation 2 of 4 Group services and Siemens' subcontracted by E-J. On February 22,201 I, while working at the Project, Plaintiff was injured when he fell from a ladder. Plaintiff 2 DEP [*FILED: 3] ROCKLAND COUNTY CLERK 07/25/2017 07:30 AM NYSCEF DOC. NO. 203 INDEX NO. 030879/2014 RECEIVED NYSCEF: 07/24/2017 commenced actions, first against Skanska on May 17, 2013, and then against the other Defendants on February 19,2014, asserting claims under Labor Law SS 200, 240(1), 241(6) and for negligence. The two actions were consolidated on September 16,2014. In 2014 both Skanska and URS impleaded Siemens. For reasons that do not appear, Plaintiff did not assert a direct claim against Siemens. All of the Defendants now timely move for summary judgment dismissing the Complaint - or Third Party Complaints - as asserted against them. Inasmuch as the owner is not a party and there is no General Contractor, the individual contractors may be held liable for the Plaintiffs injuries under the Labor Law or for negligence only if they had the authority to, or actually did, supervise or control the work in connection which the Plaintiff was injured, as a statutory agent for the owner/General Contractor (Russin v Louis N Picciano & Son, 54 NY2d 311, 317-18 [1981; Everitt v Nozkowski, 285 AD2d 442, 443 [2d Dept 2001]; accord Nascimento Bridgehampton Construction Corp., 86 AD3d 189,192-93 [1" Dept 2011]). Here, with the exception ofE-J and Siemens, none ofthe prime contractors had any authority to, nor exercised control over, the work Plaintiff was doing. While URS was a Construction Manger, the title notwithstanding, its duties and authority was limited to inspecting and reporting on the progress of the work and not to supervising or directing the various contractors' work. As to Siemens, while there is evidence that it supervised Plaintiffs work, as it is not a Defendant, that is -of no moment. Accordingly, all motions are granted and the Complaint and Third Party Complaints are dismissed. This constitutes the decision and order of the Court. Dated: New City, New York July..1", 2017 ) ,/ /_~~. .• "'fr o ~ HaN. GERALD E. LOEHR J.S.c. 3 3 of 4 [*FILED: 4] ROCKLAND COUNTY CLERK 07/25/2017 07:30 AM NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 07/24/2017 NEIMARK & NEIMARK Attorneys for Plaintiff 37 Congers Road New City, NY 10956 LA WRENCE, WORDEN, RAINIS & BARD, P.C. Attorneys for Defendant Malcolm Pirnie 225 Broad Hollow Road, Suite 105E Melville, NY 11474 Peekskill, NY 10566 MARKS,O'NEILLE, O'BRIEN, HOHERTY & KELLY,P.C. Attorneys for Defendant SIEMENS 708 Third Avenue, Suite 2500 New York, NY 10017 LewIS, JOHS, AVV ALLONE, AVILES LLP Attorneys for Defendant URS/MALCOLM PIRNIE, JOINT VENTURE 61 Broadway, Suite 2000 New York, NY 10016 RANZULLI LAW FI9RM, LLC Attorneys for Defendant JOHN P. PICONE, INC., SHIACONE/PICONE JOINT VENTURE 81 Main Street, Suite 81 White Plains, NYI0601 - INDEX NO. 030879/2014 .••.. 4 4 of 4

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