Kosta v WDF, Inc.

[*1] Kosta v WDF, Inc. 2018 NY Slip Op 51306(U) Decided on September 10, 2018 Supreme Court, Kings County Boddie, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2018
Supreme Court, Kings County

John Kosta, AS ADMINISTRATOR OF THE ESTATES OF GENNARO MONTELLO, DECEASED AND DONNA MONTELLO, DECEASED, DAVID MOSTYN AND LISA MOSTYN, JAMES SCARPATI, JOSEPH DIGIOVANNI AND BONNIE DIGIOVANNI, , Plaintiffs,

against

WDF, Inc., SERPENTIX CONVEYOR CORPORATION, PRO SAFETY SERVICES, LLC, J. BLANCO ASSOCIATES, INC., SHAW ENVIRONMENTAL & INFRASTRUCTURE ENGINEERING OF NEW YORK, P.C., STONE & WEBSTER A SHAW GROUP COMPANY, BIDWELL ENVIRONMENTAL, L.L.C., METCALF & EDDY OF NEW YORK, INC. AND CHU & GASSMAN CONSULTING ENGINEERS, PC, Defendants.



31167/09



Appearances of Counsel:

Kramer, Dillof, Livingston & Moore

Attorneys for Plaintiff John Kosta

217 Broadway

New York, NY 10007

212-267-4177

Lewis, Brisbois, Bisgaard & Smith, LLP

Attorneys for Defendant WDF Inc.

77 Water Street, Suite 2100

New York, NY 10005

212-232-1300

Braff, Harris & Sukoneck

Attorneys for Defendant Serpentix Conveyor Corporation

305 Broadway, 7th Floor

New York, NY 10007

212-599-2085 Rafferty & Redlisky, LLP

Attorneys for Defendant/3rd Party Defendant Pro Safety Services, LLC

438 Fifth Avenue, Suite 101

Pelham, NY 10803

914-696-0006

Nicoletti, Gonson, Spinner & Owen, LLP

Attorneys for Defendant J.Blanco Associates, Inc.

555 Fifth Avenue, 8th Floor

New York, NY 10017

212-730-7750

Ahmuty, Demers & McManus

Attorneys for Defendants Shaw Enviromental & Infrastructure Engineering of NY, P.C.

and Stone & Webster Engineering of NY and Stone & Webster a Shaw Company

199 Water Street

New York, NY 10038

212-513-7788

Kowalski & Devito

Attorneys for 3rd Party Defendant Bidwell Environmental LLC

80 Pine Streetm Suite 300

New York, NY 10005

Milber, Makris, Plousadis & Seiden

Attorneys for Defendants/2nd 3rd Party Defendant Chu and Gassman Consulting Engineers, P.C.

100 Woodbury Road, Suite 402

Woodbury, NY 11797

516-712-4000
Reginald A. Boddie, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:

Papers Numbered

PSS Motion for Summary Judgment (MS12) 1

Opposition by Plaintiff, WDF, Shaw, City 2-4

Reply to Opp by Plaintiff, WDF, Shaw, City 5-8

Bidwell Motion for Summary Judgment (MS13) 9

Opposition by Plaintiff, WDF, Shaw 10-12

Reply to Opp by Plaintiff, WDF, Shaw 13

Shaw Motion for Summary Judgment (MS14) 14

Opposition by Plaintiff, WDF, C & G 15-17

Reply to Opp by Plaintiff, WDF, C & G 18-20

Serpentix Motion for Summary Judgment (MS 15) 21

Opposition by Plaintiff, WDF, Shaw 22-24

Reply to Opp by Plaintiff, WDF, Shaw 25

Plaintiff's Motion for Summary Judgment (MS16) 26

Opposition by WDF, Shaw, C & G 27-29

Reply to Opp by WDF, Shaw, C & G 30

C & G's Motion for Summary Judgment (MS17) 31

Opposition by Plaintiff, WDF, Shaw 32-34

Reply to Opp by Plaintiff, WDF, Shaw 35

WDF Motion for Summary Judgment (MS18) 36

Opposition by Shaw, C & G, J. Blanco 37-39

Reply to Opp by Shaw, C & G, J.Blanco 40-42

J. Blanco's Motion for Summary Judgment (MS19) 43

Opposition by WDF, Shaw 44-45

Plaintiff's Cross-Motion for Summary Judgment (MS20) 46

WDF's Opposition & Reply in Further Support of Its Motion 47

Upon the foregoing cited papers, and after oral argument, the decision and order on the motions recited above is as follows:

Preliminary Statement

This case involves the collapse of machinery on several City employees during a period of construction at the Owl's Head Water and Treatment Plant in Brooklyn, NY, a waste treatment facility. Defendants denied that any City workers were actively involved in the construction activities. Gennaro Montello, died as a result of his injuries. Subsequently, Mr. Montello's wife also died due to causes unrelated to this accident. Plaintiffs sought to hold all of the defendants responsible for the accident and death. All claims of the plaintiff parties were resolved at the time of the motions, except those of the Montellos. The claims against Metcalf & Eddy were discontinued.

Facts

Owl's Head Water and Treatment Plant in Brooklyn (Owl's Head) is owned and operated by third-party defendants New York City Department of Environmental Protection (DEP) and the City of New York (City). At the time of the alleged accident, Owl's Head was undergoing a major renovation and construction project which included alterations and additions to its Grit and Scum Building (G & S). In this building, solid waste (referred to as "grit") was separated from [*2]other waste in cyclone machines and placed in dumpsters for transport to landfills. DEP had insisted that its facility continue operations during the construction period. Consequently, when WDF, Inc. (WDF), was awarded the construction contract on May 17, 2007, it was required to purchase, assemble and install three temporary conveyors capable of transferring grit from the de-grit machines to the dumpsters. The conveyers were being used during the construction period allegedly to provide construction workers easier access to an area behind the de-grit machines and permit the facility to continue operation during the construction.

Pursuant to its contract with DEP, WDF purchased three Serpentix Pathwinder Conveyers from defendant Serpentix Conveyor Corporation (Serpentix), which were delivered to the treatment plant in or about July 2008. The conveyers each weighed approximately 3,000 pounds, and measured 34 feet from end to end. One end was built significantly higher than the other, the lower end measured 6 inches off the ground and the higher end 10ft 5 inches. The track and belt assembly were supported by steel beams, braces, supports and plates. The conveyors were manufactured to be bolted to the floor and held stationary.

Just prior to delivery, William Grander, superintendent of Owl's Head, requested of WDF that the conveyors be made portable rather than bolted to the floor. The WDF mechanical supervisor, Michael Dawkins, contacted Serpentix to inquire whether wheels could be attached and was informed the conveyors were already boxed and on the truck for delivery. WDF contacted J. Blanco Associates, Inc. (J. Blanco), provided partial drawings and specifications of the conveyors, and requested the fabrication of caster wheels capable of supporting the conveyers. J. Blanco provided the caster wheels welded to base plates which WDF affixed to the legs of the conveyors, raising the height by nearly 8 inches.

The conveyors were fully installed in July 2008. On August 12, 2008, Serpentix provided a field representative which gave a training, inspected the conveyors, and generated a report. On August 27, 2008, Serpentix informed WDF that the alterations of the conveyors with wheels voided the warranty and the rigidity of the conveyors could not be guaranteed without additional supports. Serpentix estimated the cost of the necessary modifications at $8,250 per conveyor. WDF never accepted this offer.

On January 9, 2009, plaintiff's decedent, Gennaro Montello, an employee of DEP arrived at work at 7:00 a.m. and was requested by his supervisor, Mr. Grander, to move the three conveyors from inside the G & S Building to an outside temporary storage area. Other City workers stepped in to assist. Two of the conveyors were moved successfully. The third conveyor twisted and collapsed outside the G & S Building, due to instability, injuring several workers and killing Mr. Montello.

Mr. Grander did not dispute that he instructed the City workers to move the conveyors. However, he alleged he met with WDF that morning in his office and WDF, in anticipation of a concrete pour in the new building that day, requested the conveyers be moved to provide workers access to the side door with equipment. WDF admitted its employees and safety inspector, Pro Safety Services, LLC (PSS), were on site, but denied such an instruction was given.

The relationship of the defendant parties was as follows: WDF was hired by DEP to perform construction work at Owl's Head. WDF hired PSS as its safety inspector for the project. WDF purchased the subject conveyors from Serpentix Conveyor Corp (Serpentix) and contracted J. Blanco to design the caster wheels. Shaw Environmental & Infrastructure Engineering of [*3]New York PC, Stone & Webster Engineering of New York, and Stone & Webster A Shaw Group are interrelated companies and herein after referred to as Shaw. Shaw was hired by the City to monitor the progress of the work being performed by the other contractors. Shaw hired Chu & Gassman (C & G) as electrical consultants and engineers. C & G was also tasked with providing regular inspection reports of WDF's work and compliance with plans and specifications. C & G hired Mr. McCann to perform mechanical and electrical inspections of the construction work, which included the conveyors, and draft reports. Shaw also hired Bidwell Environmental LLC (Bidwell) as its safety inspector.

Procedural History

On December 4, 2009, Donna Montello, as Administrator of the Estate of Gennaro Montello and herself, individually, along with other injured DEP employees filed a summons and complaint, naming as defendants WDF, Inc., Serpentix Conveyor Corporation, Pro Safety Services, LLC, J. Blanco Associates, Inc., Shaw Environmental & Infrastructure Engineering of New York, Inc., Stone & Webster Engineering of New York, P.C., Stone and Webster A Shaw Group Company, Bidwell Environmental, LLC, and Metcalf and Eddy of New York, Inc.

The first cause of action alleged common law negligence against all parties. The second cause of action alleged violation of §27, §200, §240 and §241(6) of the Labor Law against all parties except J. Blanco and Serpentix. The third cause of action alleged strict products liability against Serpentix. The fourth cause of action alleged strict products liability against J. Blanco. The fifth cause of action alleged breach of the implied warranty of merchantability against Serpentix. The sixth cause of action alleged breach of the implied and express warranty of merchantability against J. Blanco. The seventh cause of action alleged wrongful death against all parties. The eighth cause of action alleged loss of services against all parties.

On March 9, 2010, WDF filed a third-party action against DEP and the City. The City answered and WDF's third-party action was later withdrawn by stipulation dated February 23, 2011. On April 27, 2010, PSS filed a cross claim against the City and DEP. PSS also filed a separate cross claim against WDF. On November 10, 2010, Donna Montello died and the caption was amended to substitute John Kosta as administrator of the Estates of Gennaro and Donna Montello.

On September 20, 2016, PSS also filed a third-party action seeking complete common law indemnification and contribution against the City. Subsequently, the claims of the plaintiffs, with the exception of the Montellos, were resolved and the claims against Metcalf & Eddy were discontinued.

Plaintiff Kosta, as the administrator of the estates of Gennaro and Donna Montello, both deceased, sought summary judgment on the issue of liability against WDF pursuant to Labor Law § 420 (1), and alleged it was the general contractor on the job, and purchased, installed and modified the conveyors, which caused the accident. Subsequently, plaintiff cross-moved against WDF and alleged violations of Labor Law §§200 and 241(6) and common law negligence. The cross motion also included opposition to the remaining parties' motions.

WDF, PSS, Serpentix, J. Blanco, Shaw, C & G, and Bidwell also sought summary judgment. WDF moving for summary judgment alleged that it did not instruct the move of the conveyors, the DEP supervisor did, and the decedent was not entitled to the protections of the Labor Law because he was not involved in the construction work or any ancillary acts related to [*4]the construction. WDF also sought summary judgment on all cross claims against it. J. Blanco, C & G, Shaw, and plaintiff opposed the motion.

C & G sought summary judgment, dismissal of the third-party complaint and all cross claims against it. C & G alleged it was hired by Stone & Webster Engineering pursuant to an agreement to provide electrical inspection support services for the project. C & G alleged it did not exercise any supervision, direction or control over the means and methods of plaintiff's decedent's work, plaintiff's decedent was not involved in the construction project or under control of anyone working on the construction project and therefore not covered under the labor law sections plead in the complaint. C & G also denied it committed any affirmative acts of negligence. The company alleged Shaw is not entitled to indemnification by C & G because C & G was not a joint tortfeasor and plaintiff's decedent's claims did not arise out of any acts or omissions of C & G. It alleged that C & G was tasked with providing daily mechanical and electrical inspection reports, including the assembly and inspection of the conveyors, and the reports omitted the fact that the conveyors were modified.

Serpentix sought summary judgment and averred that although it made the conveyors, they were intended to be stationary and WDF modified the units. Serpentix also stated WDF was informed the modifications voided the warranty and required additional bracing. Further, WDF never accepted Serpentix's plan to assist with the modification. WDF, Shaw and plaintiff, in response, alleged Serpentix failed to warn that the units, as modified, were subject to collapse and approved the conveyors for operation.

J. Blanco sought summary judgment and alleged it was not involved in the construction, it was only hired by WDF to produce caster wheels for the conveyors and was provided limited information regarding the specifications of the conveyors. The wheels were welded to a base and installed by WDF. None of the parties disputed this contention. Plaintiff did not oppose J. Blanco's motion for summary judgment. However, WDF submitted opposition on the ground J. Blanco should have contemplated it needed more information before developing the wheels and WDF relied on J. Blanco to select proper wheel supports. Shaw also opposed the motion on the ground there exists a question of fact as to whether the wheels were proper for the conveyors.

Bidwell sought summary judgment alleging it was hired only as a safety inspector pursuant to a contract with Shaw to monitor Shaw employees and the Shaw inspection team, to conduct safety meetings, and record safety observations. Bidwell stated PSS was DEP's safety inspector. Bidwell stated it had no obligation to monitor DEP workers or inspect the equipment for compliance, C & G was responsible for that. Bidwell alleged it was not in the building at the time of the accident, and its representative, Mr. O'Krepa, had the authority to inform the Shaw resident engineer to stop the work. Mr. O'Krepa did daily walk-throughs according to Shaw and observed all the work done on the conveyors including assembly. Nonetheless, Shaw issued the stop work order on January 9, 2009, directing WDF to stop all work due to "injury/fatality" until further notice. Bidwell also admitted in the Duffy affidavit at paragraph 10 that the conveyors were electrically rewired for use as portable units.

PSS also sought summary judgment and alleged it was contracted by WDF to oversee safety at the premises and provide routine inspections of the construction equipment. PSS stated it was not made aware of any safety issues regarding the conveyors by WDF. Mr. Sullivan of PSS however was alleged to be present when the conveyors were assembled, including one conveyor [*5]that was assembled outside the building. PSS alleged it was not negligent, did not exercise control or supervision over plaintiff's decedent's work, and did not have notice of or cause or create any dangerous condition on the premises. Opposing the motion, WDF alleged if PSS, its site inspector, saw a danger it should have reported it to WDF, and PSS has not established absence of a duty to the decedent. Shaw also opposed the motion and alleged PSS was on premises to insure the safety of WDF's work and the workers.

Shaw sought summary judgment dismissing the complaint. Shaw alleged it did not direct, supervise or control assembly of the conveyors, WDF did not consult it about the assembly, and the conveyors did not need to be moved for construction. It also alleged the accident was not elevation related, the deceased was not working in construction, the conveyor was not used in construction, the accident was outside the building, and it did not have notice of the condition of the conveyor. Shaw also sought contractual indemnification against C & G.

Analysis

LABOR LAW § 27-a

Labor Law § 27-a, known as the Public Employee Safety and Health Act (PESHA), was enacted "to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA [the Occupational Safety and Health Act]" (Williams v City of New York, 2 NY3d at 367, [2004] [internal quotation marks omitted], quoting Hartnett v New York City Tr. Auth., 86 NY2d 438, 442 [1995]). Labor Law § 27-a (3) (a) states: "Every employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees." "Employer" means the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof (Labor Law § 27-a [1]). "In applying this paragraph, fundamental distinctions between private and public employment shall be recognized" (Labor Law § 27-a [3] [a]). Here, the amended complaint alleges, in relevant part, Labor Law § 27-a claims against WDF, Pro Safety, Shaw, Stone & Webster Engineering, Stone & Webster A Shaw Group, Bidwell, and C & G. These defendants are not "employers" under the statute. Accordingly, the Labor Law § 27-a claims are dismissed against these defendants.

LABOR LAW § 200 & COMMON LAW NEGLIGENCE

Section 200 of the Labor Law is a codification of the common-law duty of an owner or employer to maintain a safe place to work (e.g. Jock v Fien, 80 NY2d 965, 967 [1992]; Olarte v Morgan, 148 AD3d 918, 919 [2d Dept 2017], citing Bennett v Hucke, 131 AD3d 993, 995 [2d Dept 2015]). It requires work places to be "so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety" of employees (Labor Law § 200 [1]). It also requires all machinery, equipment, and devices in such places to be "placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons" (Labor Law § 200 [1]). Section 200 is not limited to construction work (Jock, 80 NY2d at 967).

To establish liability for common-law negligence or violation of Labor Law § 200, plaintiff must establish that defendants had "authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Perri v Gilbert Johnson Enters., Ltd., [*6]14 AD3d 681, 683 [2d Dept 2005], quoting Russin v Picciano & Son, 54 NY2d 311, 317 [1981], citing Reynolds v Brady & Co., 38 AD2d 746 [2d Dept 1972]; see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Singleton v Citnalta Constr. Corp., 291 AD2d 393, 394 [2002]). "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and liability pursuant to Labor Law § 200" (Perri, 14 AD3d at 683, quoting Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2d Dept 2004], lv denied, 4 NY3d 702 [2004]). The authority to review safety at the site is also insufficient to impose liability, absent evidence that the defendant controlled the manner in which the work was performed (Perri, 14 AD3d at 683, citing see Loiacono v Lehrer McGovern Bovis, 270 AD2d 464, 465 [2d Dept 2000]); as is the "authority to stop a subcontractor from engaging in an unsafe practice and defendant's general oversight of the progress and quality of the work" (Carney v Allied Craftsman Gen. Contrs., Inc., 9 AD3d 823, 825 [3d Dept 2004]).

If the requisite control is established, a defendant may be held liable under this section either for injuries arising from the manner in which work was performed or from a dangerous condition on the premises (Bennett, 131 AD3d at 995). "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to supervise or control the methods or materials of the injured plaintiff's work" (Olarte, 148 AD3d at 919, citing Pacheco v Smith, 128 AD3d 926, 926 [2d Dept 2015]). Alternatively, a defendant may be held liable under this section for injuries arising from a dangerous condition on the premises if it created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (Ortega, 57 AD3d 54, 61 [2d Dept 2008]; Bennett, 131 AD3d at 995 [citations omitted]).

"Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment dismissing causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both of the foregoing liability standards" (Bennett, 131 AD3d at 995-996, citing see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 52 [2d Dept 2011]). "A defendant moving for summary judgment in such a case may prevail 'only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard'" (Bennett, 83 AD3d at 996, quoting Reyes, 83 AD3d at 52).

Here, plaintiff alleges the decedent was injured as a result of a dangerous or defective condition at the work site, not the manner in which the work was performed. Thus, "[w]here an accident results from a dangerous condition at the work site, a general contractor 'may be liable in common-law negligence and under Labor Law § 200 only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it'" (McLean v 405 Webster Ave. Assoc., 98 AD3d 1090, 1093 [2d Dept 2012], quoting Sotomayer v Metropolitan Transp. Auth., 92 AD3d 862, 864 [2012]; see Schultz v Hi-Tech Constr. & Mgt. Servs., Inc., 69 AD3d 701, 701-702 [2010]; Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [2009]; Van Salisbury v Elliott-Lewis, 55 AD3d 725, 726 [2008]). "Constructive notice may be imputed to the general contractor if the dangerous condition is visible and apparent and existed for a sufficient length of time prior to the accident to permit the general contractor to [*7]discover it and remedy it" (McLean, 98 AD3d at 1093, citing see Spindell v Town of Hempstead, 92 AD3d 669 [2012]).

" 'The owner's duty to provide a safe place to work encompasses the duty to make reasonable inspections' (McLean, 98 AD3d at 1093-1094, quoting Kennedy v McKay, 86 AD2d 597, 598 [1982]; see Colon v Bet Torah, Inc., 66 AD3d 731, 732 [2009]; Wynne v State of New York, 53 AD3d 656, 658 [2008]), and the question of whether the danger should have been apparent upon visual inspection is generally a question of fact" (McLean, 98 AD3d at 1094, citing see Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d at 555). This duty extends to general contractors with control over the work site (McLean, 98 AD3d at 1094, citing see Urban, 62 AD3d at 556).

Defendants WDF, PSS, Shaw, Bidwell, and C & G sought summary judgment of plaintiff's Labor Law § 200 claim arguing they did not have to the authority to supervise or control plaintiff's decedent's work and, at no time, directed, supervised or controlled the work performed by the City's workers or plaintiff's decedent. They argue that at the time of the accident, plaintiff's decedent was following the direction of the City. This Court notes defendants moved for summary judgment under the theory that plaintiff's decedent was injured by the manner in which his work was performed. Defendants failed to address the dangerous condition, the existence of structurally unstable conveyors that was known to defendants and allowed to exist at the premises for at least four months prior to the accident which resulted in plaintiff's decedent's death.

WDF

WDF contended that it is a prime contractor hired by the City to perform construction work and plaintiff's decedent was not acting under its authority, supervision and control at the time of the accident. Prime contractors, lacking privity with the general contractor, incur no liability for personal injuries arising out of work not specifically delegated to them (Russin, 54 NY2d at 315; Kenny v Fuller Co., 87 AD2d 183, 187 [2d Dept 1982] [defining "prime contractor"]). "Where such a delegation has been made, however, the prime contractor becomes a statutory 'agent' of the owner or the general contractor" (Kenny, 87 AD2d at 188, citing Russin, 54 NY2d at 318).

Here, the record demonstrates WDF was awarded a construction contract with the DEP on May 17, 2007. Under the contract, WDF was required to purchase, assemble and install three temporary conveyors capable of transferring grit from the de-grit machines to the dumpsters. WDF purchased three Serpentix Pathwinder Conveyers from defendant Serpentix Conveyor Corporation (Serpentix), which were delivered to the treatment plant in or about July 2008, and installed by WDF. To address DEP's request to make the conveyors movable, WDF's mechanical supervisor, Michael Dawkins, contacted Serpentix to inquire whether wheels could be attached. Serpentix quoted WDF an estimated cost of $8,250 per conveyor to make the requested modifications.

WDF never accepted this offer. Instead, WDF contacted J. Blanco, provided it with partial drawings and specifications of the conveyors, and commissioned it to produce caster wheels capable of supporting the conveyers. WDF affixed these caster wheels to the conveyors. Therefore, the record demonstrates WDF was contractually and specifically delegated the authority to purchase, install, and assemble the conveyors, and performed accordingly. Further, [*8]the record demonstrates that the conveyors were manufactured to be bolted to the floor and held stationary. Instead, they were modified with wheels and their electrical components altered to be mobile. On August 27, 2008, following a training and inspection of the conveyors by a Serpentix field representative, Serpentix informed WDF that the modifications voided the warranty and the rigidity of the conveyors could not be guaranteed without additional supports.

A defendant may be held liable under Labor Law § 200 for injuries arising from a dangerous condition on the premises if it created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (Ortega, 57 AD3d at 61; Bennett, 131 AD3d at 995 [citations omitted]). Here, the record demonstrates that, at least as of August 27, 2008, WDF was aware the rigidity of the conveyors could not be guaranteed without additional supports. It failed to provide the supports and plaintiff's decedent was injured while moving such equipment when it collapsed, causing his death.

"A defendant moving for summary judgment in such a case may prevail 'only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard'" (Bennett, 83 AD3d at 996, quoting Reyes, 83 AD3d at 52). WDF failed to raise a triable issue of fact as to its authority to purchase, install, and assemble the conveyors or its actual notice of the structural insecurity of the conveyors, the dangerous condition which allegedly caused the conveyor to twist and collapse on plaintiff's decedent. Accordingly, plaintiff's cross motion for summary judgment on the issue of liability against WDF pursuant to Labor Law § 200 is granted and WDF's motion for summary judgment on plaintiff's Labor Law § 200 claim is denied.

Plaintiff's cross motion does not address whether WDF controlled the manner in which plaintiff's decedent's work was performed. WDF argues it did not have the authority to control the manner in which the work was performed and even if WDF requested the conveyors be moved, DEP's Mr. Gardner fulfilled that request voluntarily and not out of any obligation to follow directions given by WDF. Nevertheless, the record establishes WDF's liability under Labor Law § 200 and therefore the Court need not decide this issue.

For the reasons set forth denying WDF's motion for summary judgment on plaintiff's Labor Law § 200 claim, WDF is also denied summary judgment on the common law negligence claim. Plaintiff's cross motion for summary judgment against WDF on its common law negligence claim is granted.

Pro Safety Services

WDF contracted with PSS to provide a full time safety representative and conduct weekly audits of the work site to ensure compliance with the contract requirements. PSS was hired to create a Health and Safety Plan (HASP) for WDF's construction project, oversee safety at the premises by providing routine inspections of the machines, tools, and equipment used by WDF to perform the construction, renovation and/or excavation work at the construction project, and report its findings to WDF. PSS argues that WDF had the sole authority to implement the safety program. PSS alleged it was not made aware of any safety issues regarding the conveyors by WDF and did not inspect the conveyors because it was not required to inspect tools, machines or equipment not used during the construction process and it never observed WDF employees operating the conveyors.

PSS argued that the authority conferred upon it by its contract with WDF did not constitute the type of control necessary to impose liability. The evidence in the record demonstrates that the scope of the authority delegated to PSS by its contract with WDF was limited to overseeing the work of WDF's employees to ensure compliance with the construction contract and to report unsafe conditions to WDF.

Kevin Sullivan, the PSS safety representative assigned to Owl's Head from April 2008, through the date of the accident, admitted he observed the conveyors being assembled. He averred, however, that he was not provided with any materials relating to the conveyors, such as specifications, drawings or manuals. He further stated that he never observed any safety issues, received notice of any safety concerns involving the conveyors, or saw anyone from either WDF or DEP moving them. PSS alleged it was not negligent, did not exercise control or supervision over plaintiff's decedent's work, and did not cause or create, or have notice of, any dangerous condition on the premises.

WDF opposed PSS's motion for summary judgment, arguing if PSS, its site inspector, saw a danger it should have reported it to WDF, and PSS has not established absence of a duty to the decedent. Shaw opposed the motion alleging PSS was on premises to insure the safety of WDF's work and the workers. Plaintiff opposed PSS's motion on the grounds WDF's contract with DEP required WDF to take all reasonable precautions to protect persons from injury resulting from WDF's operations under the contract. Plaintiff argued PSS was WDF's statutory agent for the purpose of inspecting the premises, thus giving rise to liability for dangerous conditions that existed on the premises. Plaintiff further argued WDF retained PSS as the safety consultant to fulfill its contractual obligations with respect to safety for this project and there are questions of fact regarding PSS's liability as a statutory agent of WDF. The Court agrees.

Here, WDF's duty to provide a safe place to work encompassed the duty to make reasonable inspections (see McLean, 98 AD3d at 1093-1094, quoting Kennedy v McKay, 86 AD2d 597, 598 [1982]; see Colon v Bet Torah, Inc., 66 AD3d 731, 732 [2009]; Wynne v State of New York, 53 AD3d 656, 658 [2008]). The evidence presented demonstrates WDF contracted with PSS to make inspections and report safety issues to WDF. PSS argued the scope of its authority was limited to tools, equipment, and machines used in construction, the conveyors were not used in construction, and were therefore outside the scope of the authority delegated to PSS. However, the evidence, when viewed in the light most favorable to the non-moving party, demonstrates that the conveyors were owned by WDF and permitted to exist in a known dangerous condition for at least four months prior to the accident.

Although PSS argued its inspector was not provided with any materials relating to the conveyors, never observed any safety issues or received notice of any safety concerns involving the conveyors, or saw anyone from either WDF or DEP moving them, the Court finds this argument unavailing for two reasons. First, section 200 of the Labor Law is not limited to construction work (Jock, 80 NY2d at 967). Second, even assuming PSS never inspected the conveyors, there are questions of fact as to whether they were obligated to inspect them as equipment belonging to WDF and whether the danger should have been apparent upon visual inspection (see McLean, 98 AD3d at 1094, citing see Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d at 555). Moreover, constructive notice may be imputed to PSS if the dangerous condition is visible and apparent and existed for a sufficient length of time prior to the accident for it to [*9]have been discovered and remedied (see McLean, 98 AD3d at 1093, citing see Spindell v Town of Hempstead, 92 AD3d 669 [2012]). Accordingly, PSS's motion for summary judgment dismissing the Labor Law § 200 and common law negligence claims is denied.

Shaw, Bidwell, and C & G

Shaw, Bidwell and C & G also sought summary judgment. Shaw was hired by the City as construction manager to monitor the progress of the work being performed by the other contractors and ensure the construction was completed in compliance with the contract. Shaw hired Bidwell as its safety inspector. Bidwell contended its job was administrative and limited to construction activity. Shaw averred it hired Bidwell as its health and safety sub-consultant to make periodic inspections of its personnel to ensure work was being performed in a safe manner and to enforce Shaw's HASP, which applied only to Shaw personnel. Shaw also hired C & G, electrical consultants and engineers, to provide regular inspections and reports of WDF's work for compliance with plans and specifications. Jeremy McCann, the electrical inspector hired by C & G, performed mechanical and electrical inspections and produced Resident Engineer Inspection Daily Reports. McCann produced a report of assembly of the conveyors and the mechanical and electrical work associated with assembly of the conveyors. McCann's reports never indicated the conveyors were out of compliance or that any non-compliance was ever reported to C & G, Shaw, Bidwell, or DEP.

Recognizing that the duties of a construction manager and a general contractor are not identical, the Appellate Division addressed the question of whether a construction manager can be held to be a "contractor" within the meaning of the Labor Law in Kenny v Fuller Co. (87 AD2d at 188-189). The determination is made based on the obligations delegated to the construction manager in the contract between the parties (id. at 188). Where the construction manager is "substantially in charge of and in supervisory control of the worksite," it will be considered a contractor for the purposes of the statute (id. at 189).

In Carollo v Tishman Constr. & Research Co., 109 Misc 2d 506, 508 (NY County 1981), the Court held the construction manager was a contractor under the statute because it was contractually obligated "'to provide design consultation on the project; to monitor project costs ...; to schedule the project efficiently for both design development and construction phases ...; and to review the design of the project,'" and "since it had the penumbral obligation to co-ordinate the various trades and provide a safe work place" (Kenny, 87 AD2d at 189). In Kenny, the Appellate Division previously concluded the construction manager was a contractor based on its contractual obligations . . .

to analyze design programs and costs; co-ordinate implementation of the design; prepare all cost analyses for the owner; continuously review and make recommendations concerning construction detailing; review the contract documents; recommend the establishment and implementation of a comprehensive safety program for the project; and, during the construction stage, establish procedures for and maintain co-ordination among the owner, architect, the various contractors and itself concerning all aspects of the project and regularly observe the work being performed by the contractors by inspecting the site for the purposes of controlling quality, co-ordinating, expediting and reporting construction progress (87 AD2d at 189 [opining, "Absent a more specific legislative [*10]directive, one would be hard-pressed to envision a 'contractor' better fitting the stated statutory purpose"]).

Here, Shaw averred it was hired as a construction manager for the limited purpose of overseeing the progress of construction and is therefore not liable under the Labor Law. The record demonstrates that Shaw was required to provide engineering inspections and coordinate engineering services. The contract required Shaw to obtain concise descriptions of the design assumptions, major system components, and functional descriptions for each of the systems provided under the construction contracts, including the Serpentix conveyors.

Shaw also oversaw contractors' compliance with their approved HASPs, developed its own HASP, and designated a site safety officer. David Charles Stahl, appearing as a witness for Shaw, described Shaw's role as policing. The contractors on site, including WDF, were required to submit their HASPs to Shaw, who was tasked with making sure the contractors were complying with their HASPs. Shaw was also contractually required to ensure that its HASP, as well as the HASPs of other contractors, were updated to reflect ongoing site conditions.

Contractors being overseen by Shaw were also required to submit to Shaw a one-month "look ahead" of the work the contractor anticipated performing for review and approval by Shaw. Shaw was tasked with making suggestions about the anticipated work depending on other work requiring completion before certain work could be performed.

Shaw had the authority to issue stop work orders and convene a meeting to address non-compliance if its inspections revealed a hazardous condition or non-compliance with project specifications. Shaw was authorized to lift stop work orders upon mitigation of the issue and reinspection. The record demonstrates that Shaw issued a stop work order on January 9, 2009, directing WDF to stop all work due to "injury/fatality" until further notice.

Mr. Stahl indicated it was his understanding that Shaw undertook its role as construction manager at the Owl's Head plant with the intention that any activity undertaken on the job site toward the completion of the job would be overseen and supervised, and that Shaw was contractually obligated to ensure that work performed, including the assembly of the conveyor belts, would be supervised so that it would be performed in a safe manner and to prevent the type of accident that resulted in plaintiff's decedent's death. It was not explicitly asked or stated in Mr. Stahl's deposition whether such supervision would be provided by the contractors and monitored by Shaw or provided by Shaw.

Here, the evidence establishes Shaw was hired to review the design of the project and the contract documents, analyze design programs and costs, coordinate implementation of the design, coordinate the various trades, regularly observe the work of contractors by inspecting the site for purposes of controlling quality, coordinating, expediting and reporting construction progress, monitor workplace safety, schedule the project efficiently during the construction phase and coordinate implementation. However, there is insufficient evidence to determine whether Shaw was hired to provide design consultation on the project, schedule the project efficiently for design development, prepare all cost analyses for the owner, continuously review and make recommendations concerning construction detailing, and establish procedures for and maintain coordination among the owner, architect, the various contractors and itself concerning all aspects of the project.

Moreover, there is insufficient evidence to determine whether Shaw was contractually obligated to recommend the establishment and implementation of a comprehensive safety program for the project and provide a safe place to work. The contractors, not Shaw, were required to develop their own HASPs. Shaw collected these HASPs and monitored the contractors for compliance. Shaw had the authority to issue and lift stop work orders for technical or safety reasons. Mr. Stahl's testimony that Shaw undertook its role as construction manager at the Owl's Head plant with the intention that any activity on the site would be overseen and supervised for safety was insufficient to establish whether such supervision and safety would be provided by the contractors and monitored by Shaw or provided by Shaw.

Even assuming Shaw were to be considered a contractor for purposes of the Labor Law, it must also be demonstrated that Shaw exercised the requisite degree of supervision and control over the work being performed (Carney, 9 AD3d at 825). "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and liability pursuant to Labor Law § 200" (Perri, 14 AD3d at 683, quoting Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2d Dept 2004], lv denied, 4 NY3d 702 [2004]). The authority to review safety at the site is also insufficient to impose liability if there is no evidence that the defendant controlled the manner in which the work was performed (Perri, 14 AD3d at 683, citing see Loiacono v Lehrer McGovern Bovis, 270 AD2d 464, 465 [2d Dept 2000]). Even the "authority to stop a subcontractor from engaging in an unsafe practice and defendant's general oversight of the progress and quality of the work is insufficient to raise a material question of fact with respect to whether defendant exercised the requisite degree of supervision and control over the work being performed to sustain a claim under Labor Law § 200 or common-law negligence" (Carney v Allied Craftsman Gen. Contrs., Inc., 9 AD3d 823, 825 [3d Dept 2004]).

Here, the contract provided, "It is the responsibility of the Construction Contractors, and not the responsibility of the CM [Shaw], to determine the means and methods of construction. . . However, if it becomes apparent that the means and methods of construction proposed by the Construction Contractors will constitute or create a hazard . . . to persons or property, . . . such means and methods must be reported to [DEP] . . ." The record here is insufficient to establish whether Shaw was contractually obligated to provide a safe place to work. Mr. Stahl described Shaw's role as policing wherein the contractors, not Shaw, were required to develop their own HASPs and Shaw monitored the contractors for compliance and had the authority to issue and lift stop work orders for technical or safety reasons.

Mr. Stahl's testimony that Shaw undertook its role as construction manager at the Owl's Head plant with the intention that any activity on the site would be overseen and supervised for safety was insufficient to establish that Shaw's role encompassed more than "policing" or monitoring. The record establishes Shaw oversaw the progress of the work for compliance with contract specifications, reviewed safety at the site for compliance with the HASPs, and had the authority to stop contractors from engaging in unsafe practices by issuing stop work orders. However, these activities are insufficient to impose liability for common-law negligence and liability pursuant to Labor Law § 200 (Perri, 14 AD3d at 683, quoting Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2d Dept 2004], lv denied, 4 NY3d 702 [2004], citing see Loiacono v Lehrer McGovern Bovis, 270 AD2d 464, 465 [2d Dept 2000]). Further, the record fails to [*11]establish Shaw exercised the requisite degree of supervision and control over the work performed to sustain a claim under Labor Law § 200 or common-law negligence (Carney v Allied Craftsman Gen. Contrs., Inc., 9 AD3d 823, 825 [3d Dept 2004]). Accordingly, Shaw is granted summary judgment on plaintiff's Labor Law § 200 and common law negligence claims. For the same reasons, Bidwell and C & G are also granted summary judgment on these claims.

LABOR LAW § 240 (1)

Section 240 (1) of the Labor Law (the Scaffolding Law), in relevant part, imposes a nondelegable, strict and absolute liability on all contractors and owners and their agents in the erection, demolition, repairing, or altering of a building or structure to furnish or erect for the performance of such work, scaffolding, stays, braces, and other devices, which are constructed, placed, operated, and maintained so as to give proper protection to the person performing such work. The intent of the statute is to protect a worker from hazards related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

To recover under Labor Law § 240 (1), plaintiff's injury must have occurred while the plaintiff was engaged in a covered activity: "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Soto v J. Crew, 21 NY3d 562, 566 [2013], citing Labor Law § 240 [1]; see Panek v County of Albany, 99 NY2d 452, 457 [2003]). The term "structure" is broadly defined as "any production or piece of work artificially built up or composed on parts joined together in some definite manner" (Caddy v Interborough R.T. Co., 195 NY 415, 420 [1909]; Lewis-Moors v Contel of NY, 78 NY2d 942, 943 [1991]) and includes conveyor belts (Litigating Construction Accident Cases in New York § 8:1; Abreu v LKPC Realty, Inc, 2001 WL 36383616 [Sup Ct, Kings Co 2001]). The term "altering" within the meaning of Labor Law § 240 (1) requires making a significant physical change to the configuration or composition of the building or structure (Joblon, 91 NY2d at 465). Therefore, the threshold question in determining whether Labor Law § 240 (1) applies is "what type of work the plaintiff was performing at the time of injury" (Jones v Village of Dannemora, 27 AD3d 844 [3d Dept 2006], citing Joblon v Solow, 91 NY2d 457, 465 [1998]).

Section 240 (1) applies to a job task which is not specifically enumerated within the statute as long as it is a necessary and integral part of a covered project (Litigating Construction Accident Cases in New York § 19:8), but "afford [s] no protection to a plaintiff injured before any activity listed in the statute was under way," even where the work is incidental or necessary to a larger project within the purview of the statute (Jones, 27 AD3d at 845, citing Panek v County of Albany, 99 NY2d 452, 457 [2003]; see Martinez v City of New York, 93 NY2d 322, 326 [1999]; see also Adair v Bestek Light. & Staging Corp., 298 AD2d 153, 153 [2002]; Matter of Gorleski v Town of Halfmoon, 281 AD2d 754, 756 [2001]; Orellana Siguenza v Cemusa, Inc., 127 AD3d 727, 728 [2d Dept 2015]; cf. Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]). If plaintiff's activities do not fall within those enumerated in the statute, the protections of the statute do not extend to plaintiff because plaintiff cannot be regarded as a person "employed" under the statute (see Orellana Siguenza v Cemusa, Inc., 127 AD3d 727, 728-729 [2d Dept 2015] [citations omitted]). Where work is ancillary to a larger construction project, but [*12]undertaken contemporaneously with an ongoing construction project, the protections of Labor Law § 240 (1) apply (Prats v Port Auth. of NY & N.J., 100 NY2d 878, 882 [2003]). However, where work is undertaken in separate, sequential phases, in anticipation of or after a construction project, Labor Law § 240 (1) does not apply (Prats, 100 NY2d at 881).

Here, plaintiff's decedent was employed by the City when he was assigned the task of moving the conveyor out of the G & S building where concrete was allegedly scheduled to be poured. The Court finds this activity, although arguably ancillary to the construction project, was performed in anticipation of the construction work (see e.g. Prats, 100 NY2d at 881; Jones, 27 AD3d at 845; Panek v County of Albany, 99 NY2d at 457; Martinez, 93 NY2d at 326). Plaintiff's decedent was to play no role in the alleged concrete pour (see Signuenza, 127 AD3d at 728; cf. Runner, 13 NY3d at 603; cf. Prats, 100 NY2d at 882). Plaintiff's decedent did not work for WDF, the contractor hired to perform the construction project, and was not hired to do the work that substantially altered the G & S building (cf. Runner, 13 NY3d at 603; cf. Prats, 100 NY2d at 882). Moreover, plaintiff's decedent was not engaged in a significant physical change to either the G & S building or the conveyor at the time of the accident (Joblon, 91 NY2d at 465; cf. Panek, 99 NY2d at 459). Accordingly, plaintiff's decedent cannot be regarded as a person "employed" to perform an activity enumerated under Labor Law § 240 (1) (Orellana Siguenza, 127 AD3d at 728, citing Martinez v City of New York, 73 AD3d 993, 996 [2d Dept 2010]). The amended complaint alleged, in relevant part, Labor Law § 240 (1) claims against WDF, PSS, Shaw, Bidwell, and C & G. Therefore, these defendants' motions for summary judgment are granted to the extent plaintiff's claims pursuant to Labor Law § 240 (1) are dismissed and plaintiff's motion for summary judgment on the issue of liability against WDF, pursuant to Labor Law § 240 (1), is denied as moot.

LABOR LAW § 241 (6)

Section 241 (6) of the Labor Law, in relevant part, imposes a nondelegable, strict and absolute liability on all contractors and owners and their agents, when constructing buildings, to construct, shore, equip, guard, arrange, operate and conduct all areas in which construction work is being performed such that persons employed therein or lawfully frequenting such places are provided reasonable and adequate protection and safety. Although the liability of a contractor or owner, pursuant to Labor Law 241 (6), extends throughout a construction site (Reinitz v Arc Elec. Constr. Co., 104 AD2d 247, 249 [3d Dept 1984]), the liability for violation of the statute extends only to workers employed or lawfully upon the premises to perform construction, excavation, or demolition work (Olarte, 148 AD3d at 920) and causes of action invoking the statute must be based upon violations of specific codes, rules, or regulations applicable to the circumstances of the accident (Ortega v Puccia, 57 AD3d at 60, citing see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502; Ares v State of New York, 80 NY2d 959, 960 [1992]; Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

Liability under Labor Law § 241 (6) is not limited to accidents on the building construction site (Joblon, 91 NY2d at 466, citing see Mosher v State of New York, 80 NY2d 286). However, it is inapplicable outside the construction, demolition or excavation context (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003], citing see Nagel v D & R Realty Corp., 99 NY2d 98 [2002] ). In order for plaintiff to recover under Labor Law 241 (6), plaintiff must first demonstrate that the decedent was engaged in construction, excavation, or [*13]demolition work (see 12 NYCRR 23-1.4; Vilardi v Berley, 201 AD2d 641, 643-644 [2d Dept 1994]). The Courts look to the regulations contained in the Industrial Code (12 NYCRR 23-1.4 [b] [13]) to define what constitutes construction work within the meaning of the statute (Joblon, 91 NY2d at 466, citing Jock, 80 NY2d at 967; see also DaBolt v Bethlehem Steel Corp., 92 AD2d 70, 73-74, lv dismissed 60 NY2d 554). The Industrial Code defines "construction work" as "all work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure" (12 NYCRR 23-1.4 [b] [13]; Joblon, 91 NY2d at 466).

Moving a structure may be included in the purview of Labor Law § 241 (6) if it is performed in the context of construction, excavation or demolition that is underway (see Vernieri v Empire Realty Co., 219 AD2d 593, 595 [2d Dept 1995]; see also DeTommaso v Fitzgerald Constr. Corp., 138 AD2d 341, 343 [2d Dept 1998]). Here, plaintiff's decedent was injured in the process of moving a conveyor out of the G & S Building. However, at the time of the accident, plaintiff's decedent was not performing construction and there is no evidence in the record that he was engaged in the construction work that was underway (see Vernieri, 219 AD2d at 595; see Joblon, 91 NY2d at 466). The amended complaint alleged, in relevant part, Labor Law § 241 (6) claims against WDF, PSS, Shaw, Bidwell, and C & G. Therefore, defendants' motions for summary judgment are granted to the extent plaintiff's claims pursuant to Labor Law § 241 (6) are dismissed as against these defendants, and plaintiff's cross motion for summary judgment on the issue of liability against WDF, pursuant to Labor Law § 241 (6), is denied as moot.

STRICT PRODUCTS LIABILITY, BREACH OF EXPRESS AND

IMPLIED WARRANTIES OF MERCHANTABILITY, AND NEGLIGENCE

Serpentix and J. Blanco, manufacturers of the conveyors and caster wheels, moved for summary judgment on plaintiff's claims for strict products liability, breach of express and implied warranties of merchantability, and negligence. A threshold issue in claims for strict products liability, breach of warranties of merchantability, and negligence is causation (Sita v Danek Medical Inc., 43 F Supp 2d 245, 252 [EDNY 1999] [citations omitted]). Specifically, to survive a motion for summary judgment, plaintiff must proffer sufficient proof "that a defect in the product was a substantial factor in causing the injury" (Sita, 43 F Supp 2d at 252 [EDNY 1999], quoting Tardella v RJR Nabisco, Inc., 178 AD2d 737 [3d Dept1991], citing Rosado v Proctor & Schwartz, 66 NY2d 21, 25 [1985]; Heller v U.S. Suzuki Motor Corp., 64 NY2d 407, 412 [1985]). Here, plaintiff did not oppose the motion by J. Blanco. Accordingly, J. Blanco's motion is granted without opposition. Plaintiff , however, argued Serpentix should be denied summary judgment on the grounds that Serpentix failed to provide adequate warnings of the dangers of adding caster wheels to the conveyors and negligently and improperly approved the conveyors for operation.

"A claim of strict products liability can assert either (1) a manufacturing defect, (2) a design defect, or (3) a failure to provide adequate warnings regarding the use of a product" (Fasolas v Bobcat of NY, Inc., 150 AD3d 147, 152 [2d Dept 2017] [citations omitted]). Here, the complaint alleged a design defect and failure to warn.

a. Design Defect

"[A] defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use," and "whose utility does not outweigh the danger inherent in its introduction into the stream of commerce" (Hoover v New Holland N. Am., Inc., 23 NY3d 41, 53-54 [2014], quoting Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983]; Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479 [1980]). ". . . The principles of foreseeability are irrelevant in an action sounding in strict products liability where the finished product, safe at the time it left the manufacturer's plant, has been subjected to a material alteration by a third party which created a new potential danger" (Amatulli v Delhi Constr. Corp., 156 AD2d 500, 502 [2d Dept 1989], citing see Robinson v Reed-Prentice Div., 49 NY2d 471, 480-481 [1980]; cf. Kriz v Schum, 75 NY2d 25 [1989]).

Here, the record establishes WDF made a material alteration to the conveyors by affixing caster wheels and altering the electrical wiring of conveyors that were manufactured to be permanently bolted to the ground and stationary. The modification raised the height of the conveyors by nearly eight inches and made them mobile. However, the record lacks evidence to establish that there was any design defect in the conveyors at the time they left Serpentix's plant. Although plaintiff proffered an affidavit in opposition to Serpentix's motion, the substance of this affidavit addressed the failure to warn. Accordingly, Serpentix is granted summary judgment and plaintiff's design defect claim against it is dismissed.

b. Failure to Warn

A manufacturer may be liable for injuries that result from a product it places on the market which is not accompanied by adequate warnings for the use (Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]). "A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known" (Liriano, 92 NY2d at 237, citing Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297 [1992]). "A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable" (Liriano, at 237, citing see Lugo v LJN Toys, 75 NY2d 850 [1990]; McLaughlin v Mine Safety Appliances Co., 11 NY2d 62 [1962]; 1 Weinberger, New York Products Liability, § 17:07, at 17-10 [2d ed]).

". . . [I]n certain circumstances, a manufacturer may have a duty to warn of dangers associated with the use of its product even after it has been sold. Such a duty will generally arise where a defect or danger is revealed by user operation and brought to the attention of the manufacturer; the existence and scope of such a duty are generally fact-specific (Liriano, 92 NY2d at 240, citing see Cover v Cohen, 61 NY2d 261, 274-277 [1984] [technical service bulletin issued by manufacturer and sent to vendor 13 months after delivery relevant and admissible]; see also Kriz v Schum, 75 NY2d 25 [upholding plaintiff's claim based on a post-sale failure to warn]; Haran v Union Carbide Corp., 68 NY2d 710, 712 [no notice to manufacturer of a danger or defect in the product]). Therefore, ". . . manufacturer liability can exist under a failure-to-warn theory in cases in which the substantial modification defense as articulated in Robinson might otherwise preclude a design defect claim" (Liriano, 92 NY2d at 241).

Courts look to the degree of danger involved and the number of instances reported to determine whether a manufacturer has a post-delivery duty to warn (Cover, 61 NY2d at 275-276, citing Comstock, 358 Mich, at p 176 [thousands of defective power brakes]; Bottazzi, 664 F2d, at [*14]p 52 [several instances of corrosion of propeller shaft of a helicopter]; Braniff Airways, 411 F2d, at p 453, cert den 396 US 959 [instances of cylinder barrel separation in an aircraft engine]; Restatement, Torts 2d, § 388, Comment i ["part of a lot, some of which he has discovered to be so imperfect as to be dangerous"]).

The nature of the warning to be given and to whom it should be given likewise turn upon a number of factors, including the harm that may result from use of the product without notice, the reliability and any possible adverse interest of the person, if other than the user, to whom notice is given, the burden on the manufacturer or vendor involved in locating the persons to whom notice is required to be given, the attention which it can be expected a notice in the form given will receive from the recipient, the kind of product involved and the number manufactured or sold, and the steps taken, other than the giving of notice, to correct the problem (Cover, 61 NY2d at 276 [citations omitted]).

This question is generally submitted to the jury to "assess the reasonableness of the steps taken by the manufacturer or vendor in light of the evidence concerning the factors listed above presented in the particular case, as well as any expert testimony adduced on the question" (Cover, 61 NY2d at 276-277).

Here, Serpentix engineers prepared bid drawings based on WDF's need for the conveyors and manufactured the conveyors based on the approved bid drawings. The conveyors were manufactured to be bolted to the ground and were shipped to WDF for assembly with safety and installation instructions. Serpentix first became aware WDF altered the conveyors on August 12, 2008, when its representative arrived at Owl's Head to provide start up services and training. Following the inspection and duplicating the inspector's report, Serpentix informed WDF by letter dated August 27, 2008, that the modifications voided the warranty and the "rigidity of the conveyor track in future movements" could not be guaranteed without additional bracing. Serpentix provided WDF a quote for the additional supports at an estimated cost of $8,250 for each conveyor.

WDF denied knowing the conveyors were structurally unstable without additional supports and argued Serpentix failed to warn them the conveyors were dangerous and a hazard. However, WDF admitted Serpentix told them as early as August 12, 2008, the date the Serpentix trainer came to Owl's Head, that the conveyors either needed to be anchored or braced with additional supports, and provided a quote for the additional supports.

The record, here, establishes that Serpentix documented the structural instability due to the modifications and the need for additional supports in its August 12, 2008 report following the training and in a letter to WDF dated August 28, 2008. No other evidence in admissible form has been proffered by the nonmoving parties to rebut these facts. Therefore, the Court finds Serpentix provided WDF with a post-delivery warning. Although WDF averred the warning was insufficient, the Court finds this argument is unsupported by the evidence.

In opposition to Serpentix's motion, plaintiff also proffered the affidavit of Gordon White, an expert in mechanical engineering with field experience in the area of bulk materials handling systems, which includes conveyors. Mr. White allegedly reviewed the structural drawings and plans for the conveyors and inspected the conveyor involved in the accident. He opined that within a reasonable degree of engineering and conveyor system certainty, the [*15]information Serpentix gave WDF "that the modification voided the warranty and that additional steel supports were required put them on notice of that safety hazard."

However, he also averred, "Serpentix only informed WDF that the modifications voided the warranty and the additional steel supports were required to reinstate the warranty. They gave no specific direct warning relative to safety hazards or dangers posed to persons in the vicinity of the conveyors." Mr. White further opined that Serpentix, upon its inspection, did not take the conveyors out of service, implement a lockout procedure, prohibit the use and movement of the conveyors, but rather approved the machines for operation, and therefore failed to provide proper, adequate and sufficient warnings regarding the modifications to the conveyors.

He concluded, "Serpentix affirmatively approved two of the three conveyors for operational use despite the defect and hazard created by . . . [the modification]," that this approval was "affirmatively misleading," and that "WDF would most certainly have shut them down from being used or moved" had Serpentix provided an express warning of the dangers and hazards posed by the structurally unstable modified conveyors. He opined that Serpentix violated accepted standards of mechanical engineering and conveyor systems design, manufacture, assembly, installation and operation when it approved the conveyors for operational use. He concluded that had Serpentix declined to approve the conveyors, "neither WDF nor the DEP would have been able to use them . . ." and therefore Serpentix's approval was a substantial cause of Mr. Montello's accident.

The Court finds this affidavit insufficient to raise a triable issue of fact. Mr. White's opinions and conclusions regarding Serpentix's failure to warn are inconsistent with the facts in the record. As of August 12, 2008, the date on which Serpentix became aware that WDF modified the conveyors, it informed WDF that additional structural supports were required to guarantee the rigidity of the conveyors in future movements. Moreover, Mr. White's conclusions about what actions WDF or DEP would have taken upon learning of the conveyors' structural instability is speculative and inconsistent with the facts in the record. The record establishes WDF was on notice of the structural instability as early as August 2008, and nevertheless continued to operate the conveyors for four months prior to the accident. Therefore, plaintiff's opposition failed to raise a triable issue of fact. Accordingly, Serpentix is granted summary judgment on the issue of strict products liability relating to the alleged failure to warn.

NEGLIGENCE

For the foregoing reasons, Serpentix and J. Blanco's motions for summary judgment are granted and the negligence claims are dismissed as against them.

EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY

Plaintiff also alleged Serpentix breached the express and implied warranties of merchantability. Express and implied warranties are contractual obligations defined by statute under New York Law. Express warranties, simply stated, are "warranties made by the seller to the buyer as part of a contract for sale" (UCC 2-313, Comment 2).

Further, if the seller is a merchant with respect to goods of the kind, as here, the statute provides "a warranty that the goods shall be merchantable is implied in a contract for their sale" (UCC 2-314). "Where the seller at the time of contract has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is . . . [generally] an implied warranty that the goods shall [*16]be fit for such purpose (UCC 2-315). "[T]he UCC's concept of a 'defective' product requires an inquiry only into whether the product in question was "fit for the ordinary purposes for which such goods are used, [which] . . . focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners" (Denny, 87 NY2d 248, 258-259, citing UCC 2-314[2][c]). However, "where the buyer [as here] gives detailed specifications as to the goods, neither of the implied warranties as to quality will normally apply to the transaction unless consistent with the specifications" (UCC 2-316, Comment 9).

Here, plaintiff's opposition did not address this issue or set forth the terms of the warranty upon which plaintiff's decedent or WDF relied (Parker v Raymond, 87 AD3 1115, 1117 [2d Dept 2011], citing see Davis v New York City Hous. Auth., 246 AD2d 575, 576 [2d Dept 1998]; Valley Cadillac Corp. v Dick, 238 AD2d 894 [4th Dept 1997]). Accordingly, Serpentix is granted summary judgment on the claims for breach of express and implied warranty of merchantability asserted against it and these claims are dismissed.

INDEMNIFICATION AND CONTRIBUTION

Finally, PSS filed cross claims for indemnification and contribution against the DEP and WDF for which it sought summary judgment. WDF filed cross claims. PSS also filed a third-party complaint against DEP. DEP answered asserting defenses of indemnification and contribution and cross claims including indemnification and contribution against WDF. WDF filed a third-party complaint against the DEP for indemnification and contribution, which it discontinued by stipulation. Nevertheless, WDF sought summary judgment granting indemnification on its cross claims against PSS.

Where the record establishes negligence on the part of contractors, owners, and agents giving rise to the injury, common law rights of indemnity are lost (Daniel R. Santola, Litigating Construction Accident Cases in New York § 24:5 [2018]; see Bryde v CVS Pharmacy, 61 AD3d 907, 909 [2d Dept 2009] [citations omitted]). Here, plaintiff was granted summary judgment on the issue of liability on its Labor Law § 200 and negligence claims against WDF. Accordingly, WDF's motion for summary judgment seeking indemnification is denied.

However, negligent contractors, owners, and their agents may nevertheless seek contribution rights where it can be shown that another party is also partially responsible (id.). Here, PSS's motion for summary judgment on plaintiff's Labor Law § 200 and negligence claims was denied because there are questions of fact as to PSS's liability. Therefore, there are questions of fact as to apportionment and contribution among the remaining defendants. Accordingly, the remainder of PSS's motion for summary judgment is denied.

CONCLUSION

For the foregoing reasons, plaintiff's claims pursuant to Labor Law § 240 (1) are dismissed and its motion for summary judgment on this claim is denied as moot. Plaintiff's cross motion for summary judgment on the issue of liability pursuant to Labor Law § 200 and common law negligence against WDF is granted. The remainder of plaintiff's cross motion seeking liability against WDF pursuant to Labor Law § 241 (6) is denied as moot. WDF's motion for summary judgment is granted to the extent plaintiff's claims pursuant to Labor Law § 27-a, 240 (1), and 241 (6) are dismissed. The remainder of WDF's motion is denied. PSS's motion for summary judgment is granted to the extent plaintiff's claims pursuant to Labor Law § 27-a, 240 (1), and 241 (6) are dismissed. The remainder of PSS's motion is denied. Shaw, Bidwell, and C [*17]& G's motions for summary judgment are granted and the complaints against them are dismissed. Serpentix and J. Blanco's motions for summary judgment are granted and the complaints against them are dismissed.

E N T E R

_________________________

Honorable Reginald A. Boddie

Justice, Supreme Court