Rios-Rodriguez v City of New York

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[*1] Rios-Rodriguez v City of New York 2018 NY Slip Op 50279(U) Decided on February 28, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2018
Supreme Court, Queens County

Gerson Rios-Rodriguez, Plaintiff,

against

City of New York, NEW YORK CITY HOUSING AUTHORITY, and URS CORPORATION, Defendants.



707343/2014
Robert J. McDonald, J.

The following electronically filed documents read on this motion defendant NEW YORK CITY HOUSING AUTHORITY (seq. no. 6) for an Order pursuant to CPLR § 3212, granting defendant NEW YORK CITY HOUSING AUTHORITY summary judgment and dismissing plaintiff's common law negligence and Labor Law §§ 200 and 241(6) claims as against defendant NEW YORK CITY HOUSING AUTHORITY, and pursuant to CPLR § 3212, granting defendant NEW YORK CITY HOUSING AUTHORITY summary judgment as against defendant URS Corporation pursuant to its claims for contractual indemnification and common law indemnification; and on this motion by defendant URS CORPORATION (seq. no. 7) for an Order dismissing plaintiff's causes of action for common law negligence, and Labor Law §§ 200, 240, and 241(6) claims as against defendant URS CORPORATION, and excluding, or limiting, the expert testimony of Kathleen V. Hopkins; and on this motion by plaintiff GERSON RIOS-RODRIGUEZ (seq. no. 8) for an Order pursuant to CPLR 3212, granting plaintiff summary judgment against defendants on the causes of action under Labor Law §§ 240(1) and 241(6) through violations of Industrial Code Rules 12 NYCRR §§ 23-1.18(b)(2) and 23.5.1(j)(1):



Papers Numbered

Notice of Motion(seq. no. 6)-Affirmation-Exhibits EF 63-77

URS' Memo. of Law in Opp EF 114

Plaintiff's Affirmation in Opposition-Exhibits EF 115-119

Reply Affirmations EF 145-148

Notice of Motion(seq. no. 7) Memo of Law-Affidavit-

Exhibits-Affirmation-Exhibits Law EF 78-92

NYCHA's affirmation in Opposition-Exhibits EF 120-130

Plaintiff's Affirmation in Opposition-Exhibits EF 136-139

Memo. of Law in Reply EF 149

Notice of Motion(seq. no. 8)-Affirmation-Exhibits EF 93-110

URS' Memo. of Law in Opp.-Affirmation-Exhibits EF 111-113

NYCHA's Affirmation in Opposition-Exhibits EF 131-135

Reply Affirmations EF 136-144

This is an action to recover damages for personal injuries allegedly sustained by plaintiff, Gerson Rios-Rodriguez, on April 17, 2014 when he fell from a sidewalk bridge while working at the Ravenswood Houses located at 13-10 34th Avenue, Astoria, New York. New York City Housing Authority (NYCHA) owns the building. URS Corporation (URS) was the general contractor/construction manager for the work. Adams European Contracting (Adams European) was plaintiff's employer at the time of the incident.

This action was commenced on October 10, 2014 by filing a summons and verified complaint. Defendant NYCHA joined issue by service of a verified answer dated January 29, 2015. Defendant URS joined issue by service of a verified answer dated January 29, 2015. All parties now move for summary judgment.

Plaintiff appeared for an examination before trial on February 1, 2016, which was continued on March 11, 2016. He testified that he was working for Adams European at the Ravenswood Houses in Astoria, Queens at the time of the incident. He began working there in February 2014, approximately two months before the incident. His foreman was Elvis Arapi of Adams European. Angelo Curto of Adams European was his supervisor. Mr. Arapi instructed him on his day-to-day activities. No one else ever gave him instructions on his day-to-day activities. The incident occurred on April 17, 2014 at approximately 8:00 a.m. The day of the incident was the first day that he worked at that building. They were in the process of completing the erection of the sidewalk bridge in front of the subject building when the incident occurred. The sidewalk bridge was twelve feet high from the ground and twelve feet wide. At the time of the incident, he was working on top of a sidewalk bridge handing wooden planks to his co-workers. He was working with approximately nine other Adams European employees at that time. All of his tools, equipment, and materials for the sidewalk bridge were provided by Adams European. He was in the process of bringing a plank or board over to a co-worker when he lost his balance and fell. He was adjusting the plank that he was carrying on his right shoulder, he lost his balance, and he fell. He fell to his right off of the sidewalk bridge. He fell off the side without panel walls. His head and right shoulder first hit the flat dirt [*2]ground. The wooden plank that he was carrying also fell and landed on top of him. He did not make complaints to anyone other than his foreman regarding the work conditions. Although he was provided with a harness and lanyard, there was nowhere on the sidewalk bridge to tie the harness to.

Juan Mercardo appeared for an examination before trial on behalf of NYCHA on May 10, 2016. At the time of plaintiff's incident, he was employed as a Superintendent with NYCHA. The Ravenswood Housing Development consists of 31 buildings that are owned by NYCHA. The work being performed in April 2014 by Adams European at the Ravenswood Houses involved the repair of the roofs and the building facades for the 31 buildings. He primarily dealt with workers from Adams European and URS during the pendency of the project. Kareem Esan was the project manager for NYCHA for the subject construction project. NYCHA did not provide Adams European with any tools, supplies, or equipment for the work. He had no involvement in the subject construction work other than entering the names of the companies in the daily log book. No one present at the work site on behalf of NYCHA had any responsibilities with respect to job site safety while the construction work was ongoing. If he observed a problem with the ongoing construction, he would have reported it to Ejazz who was a representative from URS and Kareem who was the project manager for NYCHA. It would have been Ejazz's responsibility to fix any problems at the work site and Kareem's responsibility to follow up. NYCHA had the authority to stop any work being performed unsafely. He never reported any safety issues regarding the subject project.

John Hartman appeared for an examination before trial on behalf of URS on March 31, 2016. He testified that he was employed as the senior project manager of URS in April 2014. Pursuant to a written contract, NYCHA contracted with URS in connection with the subject project (the Agreement). The construction project involved replacement of roofs and repairs to the brick facade of the buildings. He walked the construction site several times between March and April 2014, but not on a daily basis and not on any set schedule. He did not walk the construction site to look for unsafe activities. Although URS did not have any responsibility to, if he observed an unsafe activity, he would say something to the lead person on site for Adams European. The sidewalk sheds were erected by Adams European. URS inspected the areas where the sidewalk sheds were being erected to ensure that they conformed with the drawings. When URS made recommendations regarding an unsafe condition, URS expected them to be complied with by Adams European. URS did not instruct Adams European or its employees as to how to perform the work and did not supervise Adams European's work. Prior to the incident, URS never received any complaints regarding the subject [*3]sidewalk shed. No one from URS every relayed or made any complaints to NYCHA regarding the subject sidewalk shed. URS hired a site safety consultant who was responsible for observing and detailing safety conditions on the job site. The site safety consultant would walk the job site and note any observations he or she made with respect to safety. The site safety consultant made visits to the worksite on a weekly or biweekly basis. Pursuant to the Agreement, URS was responsible for the coordination of the work of the construction contractors, which meant documenting the work and communicating among the parties to coordinate the scheduling of the work. URS was also responsible to make sure that all contractors at the work site submitted site specific safety programs in connection with the work being performed. URS was to disseminate that documentation to NYCHA. The Agreement also empowered URS to implement immediate stop work orders or corrective actions to the construction contractors in the event that there was an unsafe work condition.

Mr. Hartman also submits an affidavit, dated November 20, 2017, in support of URS' motion. He affirms that the Agreement executed in January 2013, NYCHA retained URS as "construction manager as agent" to NYCHA. Pursuant to a Task Order dated March 20, 2013, URS was directed to provide certain administrative and record-keeping services for NYCHA. URS began performing such services for the subject project on or about April 1, 2013. He began working as a Senior Project Manager on the subject project in approximately March 2014. Adams European was the general contractor hired by NYCHA to perform the brickwork restoration and roofing work. During the time he worked on the project from March 2014 through June 2014, URS had four employees that worked at the field office trailer on a daily basis to fulfill its duties. They maintained daily reports and logs, reported weather conditions and temperatures, documented manpower used and logged activity quantities on a daily basis. URS did not develop, direct or control the means and methods of the way in which the contractors performed work at the site. URS did not perform any manual labor on the project. URS was not responsible for overall site safety at the project, other than for its own employees. URS was not responsible to provide, and did not provide, any materials or equipment to the contractors, including safety equipment. When he arrived at the scene of the incident, plaintiff was lying on the ground near a sidewalk shed and EMTs were tending to him. No one from URS was responsible for overseeing Adams European's work. No URS personnel were at the building where plaintiff was working at the time of the incident. At no time did anyone report to him or to anyone at URS that there was a defect or deficiency in any safety device that caused or contributed to plaintiff's injury. URS did not have authority to direct the means and methods or the materials and equipment [*4]used by Adams European or plaintiff in performing work and did not instruct them. URS was contractually obligated to hire, and did hire, a licensed site safety consultant, Safety and Quality Plus, at the site. Safety and Quality Plus was not on site every day and was not on site on the date of plaintiff's incident. Safety and Quality Plus did not direct the work of Adams European or plaintiff.

Non-party witness Elvis Arapi of Adams European appeared for an examination before trial on June 7, 2016. He testified that Adams European began work at the Ravenswood Houses in the early part of 2014. He was employed as the foreman for Adams European for this project. Part of Adams European's work was to erect sidewalk bridges. URS did not have the right to supervise Adams European's workers. URS did have the right to oversee the job by making sure that Adams European's workers were doing the right thing with materials. Someone from URS periodically inspected the work performed by Adams European to make sure that it was done safely and complied with the plans and specifications. He communicated with URS on a day-to-day basis. URS inspected the sidewalk bridges as they were being built. He was responsible for directing the workers. Prior to the incident, plaintiff never made any complaints to him regarding his working conditions or the sidewalk bridge. There was nowhere to tie the harnesses to. Other workers had complained about this issue. He was unaware of any complaints being made to NYCHA regarding the working conditions. On the day of the incident, he was working with plaintiff. At the time of the incident, he was working on a sidewalk bridge that was at least 20 feet away from the nearest building. As a result, it was not feasible for the workers constructing the sidewalk bridge to tie off. He was an eyewitness to plaintiff's incident. Prior to plaintiff's fall, he saw plaintiff's eyes turn white and roll back, and plaintiff was making "funny gestures with his hands, like he was shooing off a bee." He then called plaintiff, plaintiff did not respond, and plaintiff walked off the sidewalk bridge. He was about ten feet away from plaintiff when plaintiff fell. It appeared that plaintiff was having a seizure.

Non-party witness Angelo Curto appeared for an examination before trial on June 7, 2016. He is the project executive for Adams European. He testified that NYCHA had the right and authority to stop any unsafe activity. URS did not enter into any direct contracts with Adams European. URS did not actually perform any of the labor relating to the scaffolding. URS did not instruct Adams European employees on how to build the scaffolding or supervise Adams European employees. Plywood walls had to be erected on the sides of the sidewalk bridge and workers had to wear a harness while on top of the sidewalk bridge. There was no place to tie off harnesses on the sidewalk bridge. It was [*5]feasible and possible to provide a tie off point if the work was re-scoped and the means and methods of building the sidewalk bridge was changed. He was aware that workers were wearing harnesses with no place to tie them off to while working on the sidewalk bridge.

The proponent of a summary judgment motion has the initial burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing an entitlement to judgment as a matter of law (see Ayotte v Gervasio, 81 NY2d 1062 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the requisite showing has been made, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

It is well-settled that liability for negligence will attach pursuant to common law or under Labor Law § 200 if the plaintiff's injuries were sustained as a result of a dangerous condition at the work site and only if the owner, contractor or agent exercised supervision and control over the work performed at the site or had actual or constructive notice of the alleged dangerous condition (see Pirotta v EklecCo., 292 AD2d 362 [2d Dept. 2002]; Kobeszko v Lyden Realty Investors, 289 AD2d 535 [2d Dept. 2001]; Giambalvo v Chemical Bank, 260 AD2d 432 [2d Dept. 1999]).

The evidence in the record demonstrates that neither NYCHA nor URS supervised, directed, or controlled the method or manner in which plaintiff performed his work (see Lofaso v J.P. Murphy Assoc., 37 AD3d 769, 771 [2d Dept. 2007]; Pineda v 79 Barrow St. Owners Corp., 297 AD2d 634 [2d Dept. 2002]; Schuler v Kings Plaza Shopping Center & Marina, Inc., 294 AD2d 556 [2d Dept. 2002]). Plaintiff testified that Angelo Curto of Adams European was his supervisor and Elvis Arapi of Adams European instructed him on his day-to-day activities. No one else ever gave him instructions on his day-to-day activities. Additionally, neither NYCHA nor URS supplied any equipment or tools to plaintiff. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff failed to demonstrate that defendants had actual or constructive notice of any alleged dangerous condition or that defendants directed the means, manner and methods of the work being performed by plaintiff. General supervisory authority and the ability to stop work, without more, is insufficient to raise a triable issue of fact (see Harrison v State of New York, 88 AD3d 951 [2d Dept. 2011]; Natale v City of New York, 33 AD3d 772 [2d Dept. 2006]; Torres v Morse Diesel Intl., Inc., 14 AD3d 401 [1st Dept. 2005]). As such, plaintiff's Labor Law § 200 and common law negligence claims are dismissed as against NYCHA and URS.

Turning to plaintiff's Labor Law §§ 240(1) and 241(6) claims, Labor Law §§ 240(1) and 241(6) apply to "owners, contractors, and their agents" (see Fucci v Douglas S. Plotke, Jr., Inc., 124 AD3d 835 [2d Dept. 2015]). URS established its entitlement to judgment as a matter of law under these claims because it was not an owner, general contractor or agent of the owner or general contractor at the time the incident occurred (Florez v Conlon, 82 AD3d 831 [2d Dept 2011]). In opposition, plaintiff failed to raise a triable issue of fact. A party will be deemed to be an agent of an owner or a general contractor under the Labor Law if it had supervisory control and authority over work being performed where a plaintiff is injured (see Bennett v Hucke, 131 AD3d 993 [2d Dept 2015]; Linkowski v City of New York, 33 AD3d 971 [2d Dept 2006]). Therefore, to impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition (see Myles v Claxton, 115 AD3d 654 [2d Dept 2014]; Damiani v Federated Dept. Stores, Inc., 23 AD3d 329 [2d Dept 2005]). Although plaintiff contends that URS was not the typical construction manager and instead was acting as a statutory agent of NYCHA as the construction manager and the owner's representative, the evidence submitted established that URS' role was only one of general supervision, which is insufficient to impose liability under Labor Law §§ 240(1) and 241(6) (see Delahaye v Saint Anns School, 40 AD3d 679 [2d Dept 2007]; Arementano v Broadway Mall Props., Inc., 30 AD3d 450 [2d Dept 2006]; Loiacono v Lehrer McGovern Bovis, Inc., 270 AD2d 464 [2d Dept 2000]). Additionally, unlike the construction manager in Walls v Turner Const. Co., 4 NY3d 861 (2005]), who had a duty to control activities at the work site, URS did not have control over Adams European's work and was not responsible for Adams European's means, methods, techniques, sequences or procedures, or safety precautions or programs (see NYCHA-URS Agreement at Appendix 1: Request for Proposals 2.2.12 [Safety]). Such were solely Adams European's responsibility (see NYCHA-URS Agreement at Appendix 1: Request for Proposals 2.2.12 [Safety]). As such, URS demonstrated that it did not have the ability to control the activity which brought about plaintiff's injury (see Gonzalez v Magestic Fine Custom Home, 115 AD3d 796 [2d Dept. 2014]; Rodriguez v JMB Architecture, LLC, 82 AD3d 949 [2d Dept. 2011]). Thus, plaintiff's Labor Law §§ 240(1) and 241(6) claims shall be dismissed as against URS.

Regarding plaintiff's Labor Law § 241(6) as asserted against NYCHA, Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners, contractors and their agents, regardless of their control or supervision of the work site, to provide reasonable and adequate protection and safety to all persons employed in, or lawfully frequenting, all areas in which construction, excavation [*6]or demolition work is being performed (see Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998]; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993]; Miranda v City of New York, 281 AD2d 403 [2d Dept. 2001]). To support a Labor Law § 241(6) cause of action, a plaintiff must allege a New York Industrial Code violation that is both concrete and applicable given the circumstances surrounding the incident (see Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998]). Plaintiff only opposes and only seeks summary judgment on the claims premised upon violations of the Industrial Code Rules 12 NYCRR 23-1.18(b)(2) and 23-5.1(j)(1). Thus, the Court will only address these Industrial Code violations herein.

Plaintiff contends that an enclosure or safety railing would have averted his fall. 12 NYCRR 23-1.18(b)(2) provides, in pertinent part, that the "outside edge and the ends of the deck of every sidewalk shed shall be provided with a substantial enclosure at least 42 inches in height". 12 NYCRR 23-5.1(j)(1) provides, in pertinent part, that the "open sides of all scaffold platforms. . . shall be provided with safety railings". Plaintiff testified that there was no wall on the side of the sidewalk shed from which he fell. As plaintiff fell from a scaffold, in the form of a sidewalk shed, with a missing rail or missing enclosure, plaintiff demonstrated that a violation of the Industrial Code was a proximate cause of his injuries. Thus, even without considering the expert affidavit of Kathleen V. Hopkins, plaintiff established his prima facie entitlement to summary judgment on the cause of action under Labor Law § 241(6) through violations of Industrial Code Rules 12 NYCRR §§ 23-1.18(b)(2) and 23.5.1(j)(1). Although NYCHA contends that 12 NYCRR § 23-1.18 is inapplicable because plaintiff fell from the inside edge of the sidewalk shed rather than the outside edge, 12 NYCRR § 23-1.18 requires barricades on the side toward the building unless it is constructed solidly against the face of the building (see Debowski v City of New York, 3 Misc 3d 1109[A][Sup Ct., Kings Cnty. 2004]). Thus, NYCHA failed to demonstrate compliance with Industrial Code Rules §§ 23-1.18(b)(2) and 23.5.1(j)(1).

To prevail on a Labor Law § 240(1) cause of action, a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of New York City, 1 NY3d 280 [2003]). Labor Law § 240(1) requires owners, contractors, and their agents to provide workers with appropriate safety devices to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Although any purported contributory or comparative negligence of the plaintiff is not a defense in an action brought under the [*7]statute, a claim under Labor Law § 240(1) will not stand where the plaintiff's own conduct was the sole proximate cause of his or her injuries (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521 [1985]; Plass v Solotoff, 5 AD3d 365 [2d Dept. 2004]).

Here, plaintiff established that his injury was the result of an elevation differential within the scope of Labor Law § 240(1). Plaintiff demonstrated that the absence of devices and equipment, such as ropes, safety railings, barricades, and an anchorage point to tie his safety harness, was the proximate cause of his injuries. In opposition, NYCHA contends that based on Mr. Arapi's testimony that he observed what appeared to be plaintiff having a seizure at the time of the incident, the Pre-Hospital Care Report Summary from the Fire Department of City of New York indicating that plaintiff fell after suffering from a seizure, and the medical chart from Elmhurst Hospital Center indicating that plaintiff suffered a seizure while he was working, plaintiff's seizure was an intervening and superseding cause of the incident. An intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature that responsibility for the injury should not be attributed to them (see Kush v City of Buffalo, 59 NY2d 26 [1983]). However, an "intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent" (see Deridiarian v Felix Contracting Corp., 51 NY2d 308, 316 [1980]). Here, even if a seizure did cause plaintiff to fall, it was not the sole proximate cause of the accident such as would absolve NYCHA (see Lajqi v New York City Transit Authority, 23 AD3d 159 [1st Dept. 2005]). Additionally, although Mr. Arapi testified that it was not feasible to have Adams European's workers tie off at the stage of construction when plaintiff's incident occurred, Mr. Curto testified that it would have been feasible if the work was re-scoped. In any event, NYCHA failed to demonstrate that it provided plaintiff with proper protection. Thus, plaintiff's branch of its motion for partial summary judgment on its Labor Law § 240(1) claim is granted.

Turning to that branch of NYCHA's motion seeking contractual indemnification from URS, NYCHA submits a copy of the Agreement between NYCHA and URS for Construction Management. Section K of Appendix 3 provides an Indemnification provision in which URS "agrees to defend, indemnify and hold harmless NYCHA. . . from and against any and all liabilities, claims. . . relating to (a) any alleged or actual personal injury, bodily injury. . . arising out of or resulting from any work or Services provided by [URS] or its employees, agents, sub-consultants or subcontractors in [*8]conjunction with the Agreement". Section 2.2.2 labeled General Construction Administration of the Construction Phase Services portion of the Agreement indicates that URS agreed to "maintain competent full-time staff at the Project site to administer the Project, at all times work is being performed by the [Construction Contractors]". Section 2.2.12 labeled Safety provides that "[URS] shall require the [Construction Contractors] to submit their site specific safety program. . . [and URS] shall promote safety and endeavor to guard against the creation of unsafe conditions by any [Construction Contractors]"

Based on the Agreement, and as NYCHA is free from negligence, NYCHA contends that it is entitled to contractual indemnification because plaintiff's claim is a direct result of the services provided by URS. NYCHA contends that safety at the job site was one of the services to be provided by URS pursuant to the Agreement. Thus, as plaintiff alleges that his incident arose from a lack of safety devices, NYCHA is entitled to contractual indemnification.

In opposition, URS contends that NYCHA is not entitled to contractual indemnification because the indemnification clause does not cover instances where plaintiff's injuries did not arise out of URS' delineated and defined work at the job site. URS points to Section 2.2.12 of Appendix 1 of the Agreement, which provides that URS "shall not have control over or charge of the work and [URS] shall not be responsible for [Construction Contractors'] means, methods, techniques, sequences or procedures, and/or for safety precautions and programs in connection with the work of the [Construction Contractors], since these are solely the [Construction Contractors'] responsibility. . . [URS] shall not be responsible for [Construction Contractors'] failure to carry out the work in accordance with the [Construction Contractors'] safety programs, and/or applicable safety rules and regulations." Based on this provision, URS argues that part of its services did not include safety at the job site.

"[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 Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept. 2009]; see Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807 [2d Dept. 2009]). "When a party is under no legal duty to indemnify, 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" (Lipshultz v K & G Indus., 294 AD2d 338, 337 [2d Dept. 2002][internal quotation marks omitted]).

Here, although NYCHA established its freedom from negligence, NYCHA failed to establish that plaintiff's injuries [*9]arose from any of URS' services pursuant to the Agreement. Moreover, URS explicitly disclaimed responsibility for a Construction Contractor's failure to carry out the work in accordance with the Construction Contractor's safety programs and/or applicable safety rules and regulations.

NYCHA also seeks common law indemnification as against URS on the grounds that plaintiff's injuries arose from the performance of the work under the Agreement between URS and NYCHA and as the incident arose from the negligent acts of URS' subcontractor. To be entitled to common-law indemnification, a party must establish that it has been vicariously liable without proof of any negligence or actual supervision on its part and the proposed indemnnitor was either negligent or exercised actual supervision or control over the injury-producing work (see McCarthy v Turner Constr., Inc. 17 NY3d 369 [2011]; Perri v Gilbert Johnson Enters., Ltd. 14 AD3d 681 [2d Dept. 2005]; McNair v Morris Ave. Assoc., 203 AD2d 433 [2d Dept. 1994]). Here, NYCHA failed to establish that URS provided actual supervision over the work that caused plaintiff's injury or that URS was negligent.

Accordingly, and based on the above reasons, it is hereby,

ORDERED, that the branch of defendant NEW YORK CITY HOUSING AUTHORITY's motion (seq. no. 6) seeking summary judgment on plaintiff's common law negligence and Labor Law § 200 claims is granted; and it is further

ORDERED, that the branch of defendant NEW YORK CITY HOUSING AUTHORITY's motion (seq. no. 6) seeking summary judgment on plaintiff's Labor Law § 241(6) through violations of Industrial Code Rules 12 NYCRR §§ 23-1.8(b)(2) and 23-5.1(j)(1) is denied; and it is further

ORDERED, that the branch of defendant NEW YORK CITY HOUSING AUTHORITY's motion (seq. no. 6) seeking summary judgment as against defendant URS Corporation on its claims for contractual indemnification and common law indemnification is denied; and it is further

ORDERED, that the branch of defendant URS CORPORATION's motion (seq. no. 7) seeking summary judgment and dismissing plaintiff's causes of action for common law negligence, and Labor Law §§ 200, 240, and 241(6) claims as against defendant URS CORPORATION is granted, and plaintiff's complaint is dismissed as against defendant URS CORPORATION; and it is further

ORDERED, that the branch of defendant URS CORPORATION's motion (seq. no. 7) seeking an Order excluding, or limiting, the expert testimony of Kathleen V. Hopkins is denied with leave to renew at the time of trial; and it is further

ORDERED, that the branch of plaintiff GERSON RIOS-RODRIGUEZ's motion (seq. no. 8) granting plaintiff summary judgment on the causes of action under Labor Law §§ 240(1) and 241(6) through violations of Industrial Code Rules 12 NYCRR §§ [*10]23-1.18(b)(2) and 23.5.1(j)(1) is granted as against defendant NEW YORK CITY HOUSING AUTHORITY, only.



Dated: February 28, 2018

Long Island City, NY

_____________________________

ROBERT J. MCDONALD

J.S.C.