Emery v Steinway, Inc.

[*1] Emery v Steinway, Inc. 2018 NY Slip Op 51678(U) Decided on November 26, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2018
Supreme Court, New York County

Scott Emery, Plaintiff,

against

Steinway, Inc., 111 WEST 57TH STREET ASSOCIATES, L.P., CHEUNG KONG BUSINESS SCHOOL d/b/a CT CORPORATION SYSTEM and ROCKEFELLER TECHNOLOGY SOLUTIONS d/b/a ROCKEFELLER GROUP TECHNOLOGY SOLUTIONS, INC., Defendants.



ROCKEFELLER TECHNOLOGY SOLUTIONS INC. d/b/a ROCKEFELLER GROUP TECHNOLOGY SOLUTIONS, INC. and CHEUNG KONG GRADUATE SCHOOL OF BUSINESS SCHOOL i/s/h/a CHEUNG KONG BUSINESS SCHOOL d/b/a CT CORPORATION SYSTEM,Third-Party Plaintiffs,

against

ARTISAN COMMUNICATIONS,Third-Party Defendant.



STEINWAY, INC. and 111 WEST 57TH STREET ASSOCIATES, L.P., Second Third-Party Plaintiffs,

against

INTERIOR BUILDERS GROUP, INC., Second Third-Party Defendant.



110133/11



Plaintiff:

Wade Turnbull, Sacks and Sacks, LLP, 150 Broadway, New York, NY 10038 Defendants Rockefeller Group/Cheung Kong School:

Roberta E. Tarshis, Tarshis & Hammerman, LLP, 118-35 Queens Boulevard, Forest Hills, NY 11375

Defendants Steinway Inc/111 W. 57th Street Associates:

Stanley A. Diamond, Law Office of James J. Toomey, 485 Lexington Avenue — 7th Floor, New York, NY 10007
Carmen Victoria St. George, J.

Motion sequence numbers 005, 006 and 007 are hereby consolidated for disposition.

This is an action to recover damages for personal injuries allegedly sustained by a worker on January 6, 2011, when he struck his head on a steel beam while installing cable at 111 West 57th Street, New York, New York (the Premises).

In motion sequence number 005, defendants/second third-party plaintiffs Steinway, Inc. (Steinway) and 111 West 57th Street Associates, L.P. (111 West) (together, the Steinway defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint against it, as well as for contractual indemnification against defendant/third-party plaintiff Cheung Kong Business School d/b/a CT Corporation System (Cheung).

In motion sequence number 006, defendant/third-party plaintiff Rockefeller Group Technology Solutions, Inc. d/b/a Rockefeller Group Technology Solutions, Inc. (Rockefeller) and Cheung (together, the Rockefeller defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint against them.

In motion sequence number 007, plaintiff Scott Emery cross-moves, pursuant to CPLR 3212, for partial summary judgment in his favor as to liability on those parts of the Labor Law § 241 (6) claim predicated on alleged violations of Industrial Code 12 NYCRR 23-1.30 and

23-1.8.

BACKGROUND

On the day of the accident, Steinway owned the Premises where the accident occurred. Prior to that day, Steinway had leased the Premises to Cheung for use as a business school. In 2010, nonparty Cushman and Wakefield, the property manager for the Premises, retained second third-party defendant and nonparty Interior Builders Group, Inc. (Interior) to build out an office space for Chueng's business school on the fourth floor of the Premises. The office renovation was completed in the middle of December 2010, at which time the walls were painted, carpeting was installed, and the furniture was in place.

Thereafter, Cheung contracted with Rockefeller, a business telephone and IT services provider, to install computer equipment and communication lines at the Premises. As Rockefeller did not install cable it subcontracted out this work. The subcontracts were pursuant to two purchase orders with Artisan (a telecommunications company in the business of installing low voltage wiring for businesses). At the time of the accident, plaintiff, an employee of Artisan, was performing certain punch-list work, which entailed pulling cables through a drop ceiling to a work station.

Plaintiff's Deposition Testimony

Plaintiff testified at depositions on May 7, 2014, December 21, 2015 and August 25, 2016. During his depositions, he testified that on the day of the accident, he was working for Artisan, a company specializing in residential and commercial telecommunications. Artisan was hired by Rockefeller, pursuant to a subcontract. Plaintiff maintained that Artisan supplied all of his materials and tools, including the ladder that he was using at the time of the accident. While Artisan also supplied hard hats to its employees, and despite the fact that plaintiff requested one, it did not have one on site for plaintiff's use on the day of the accident.

Plaintiff further testified that he received all of his work instructions from his Artisan supervisor. Plaintiff explained that he was supplied with floor prints, which indicated where the telecommunication lines needed to be placed, and then he figured out himself what needed to be done. To that effect, no one gave him instructions as to how to perform his work, nor did they tell him what equipment to use.

Plaintiff explained that at the time of the accident, he was standing on a ladder that was being held by his Artisan coworker, Miguel Rodriguez. He intended to pull cable, which initiated in a telecom room, through a space located above a drop ceiling. Plaintiff testified that "[they] were just going to send the snake, get it to the location and pull it out" (plaintiff's May 7, 2014 dep tr at 190). In order to do so, plaintiff had to first remove a ceiling tile. After he had successfully "pushed [the tile] over to the next tile," plaintiff stepped up to the fourth step of the ladder and peered into the space (id. at 203).

Plaintiff testified, "That's when I went into the ceiling and couldn't see nothing, that's when I got popped in the head with the black iron" (id. at 208). Plaintiff maintained that he was caused to hit his head because "[he] couldn't see where [he] was going. There was no visibility" (id. at 209). After bumping his head, plaintiff climbed down the ladder on his own.

Deposition Testimony of Robert Paul (Rockefeller's Chief Administrative Officer)

Robert Paul testified that Rockefeller is in the business of providing telephone and IT services to businesses. He explained that on September 25, 2010, Rockefeller entered into a contract with Cheung to provide such services for Cheung's business school. As Rockefeller does not install cable, it subcontracted this work to Artisan. He noted that telephone and IT work is typically done toward the end of build-out work, as the cable contractor needs to know where to install the computer and telephone hook-ups. As of December 23, 2010, Cheung was occupying the new office space, and it was already utilizing a telecommunication system installed previously by Rockefeller.

Paul testified that Rockefeller created a punch list for Artisan in January of 2011, which included a cabling project for the installation of telecommunication lines and data networks. Before its installation, the cable was stored in various switch rooms. Artisan's work on the day of the accident entailed pulling cables "from the TV at reception to the single work station" (Paul tr at 39).

Deposition Testimony of Emmanuel Pappas (Owner of Interior)

Emmanuel Pappas testified that he owned Interior on the day of the accident. Interior was hired to perform a build-out of the fourth floor of the Premises, pursuant to a contract with Cushman and Wakefield, the building's managers. The space was going to be used as an office for a business school owned by Cheung. Pappas testified that its work at the Premises was "completed" in December of 2010, and that Interior was paid for the job on December 13, 2010 [*2](Pappas tr at 23). When asked if "the entire premises [was] complete, meaning, walls painted, carpet down, furniture in place," Pappas replied, "Yes" (id. at 28). In addition, the drop ceiling on the fourth floor was fully installed by the time that Interior left the project. Pappas noted that the installation of the office's telephone system would not have occurred until after Interior had completed its work.

Deposition Testimony of Michael Gavrielides (President of Artisan)

Michael Gavrielides testified that he was the president of Artisan on the day of the accident. He explained that Artisan is in the business of installing low voltage wiring for businesses. At the time of the accident, Artisan workers were running a cable between a table and a television. Plaintiff and Rodriguez performed this work at the direction of Mat Smith, Artisan's vice president.

Gavrielides testified that plaintiff told him that he was injured when "[h]e walked up the ladder and bumped his head" on a "black iron" (Gavrielides tr at 51). Gavrielides maintained that plaintiff never requested a hard hat from anyone at Artisan, nor did he ever complain about the lack of hard hats at the site.

Affidavit of Albert Maniscalco (Rockefeller Employee and Project Manager)

In his affidavit, Albert Maniscalco stated that Rockefeller and Artisan were "working on an office renovation" at the Premises in January of 2011. He asserted that "[t]he scope of work [in January 2011] included installing cable by running the cable above a drop ceiling, making holes and penetrations in the walls as necessary to run the cable from room to room, and pulling cable through conduit that runs from the ceiling inside the wall to a box in the wall" (Maniscalco aff). He further maintained that "[i]n the area where the accident happened a drop ceiling had been installed with ceiling tiles in place" (id.). In addition, "[t]here was no illumination above the drop ceiling, and the area between the drop ceiling and the ceiling was totally dark" (id.). When he met plaintiff at the site of the accident, plaintiff did not have a hard hat. He noted that "[i]t was not the policy or practice of Artisan to require its workers to wear hard hats" (id.).

DISCUSSION

"'The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'" (Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]).

Whether Plaintiff's Cross Motion is Timely

Initially, plaintiff concedes that its cross motion is untimely, as it was filed beyond the 60-day time period set by the court. However, as plaintiff argues

"[a] cross motion for summary judgment made after the expiration of the [60-day] period may be considered by the court, even in the absence of good cause, where a timely motion [*3]for summary judgment was made seeking relief 'nearly identical' to that sought by the cross motion. An otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion (CPLR 3212 [b]). The court's search of the record, however, is limited to those causes of action or issues that are the subject of the timely motion"

(Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006] [internal citations omitted]; see also Guallpa v Leon D. DeMatteis Constr. Corp., 121 AD3d 416, 419-420 [1st Dept 2014], citing Filannino).

Here, plaintiff's cross motion seeks summary judgment in his favor on those parts of the Labor Law § 241 (6) claim predicated on alleged violations of Industrial Code sections 23-1.30 and 23-1.8. As the Steinway defendants and the Rockefeller defendants move for dismissal of these alleged Industrial Code violations, as well, the court will consider plaintiff's cross motion.

The Common-Law Negligence and Labor Law §§ 200 and 240 (1) Claims

In their separate motions, the Steinway defendants and the Rockefeller defendants move for dismissal of the common-law negligence and Labor §§ 200 and 240 (1) claims against them. As plaintiff does not oppose dismissal of these claims, these defendants are entitled to dismissal of said claims against them.

The Labor Law § 241 (6) Claim

Defendants move for summary judgment dismissing the Labor Law § 241 (6) claim against them. Plaintiff cross-moves for summary judgment in his favor on those parts of the Labor Law § 241 (6) claim predicated on alleged violations of sections 23-1.30 and 23-1.8.

Labor Law § 241 (6) provides, in pertinent part, as follows:

"All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:* * *(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."

Labor Law § 241 (6) imposes a nondelegable duty on "owners and contractors to 'provide reasonable and adequate protection and safety' for workers" (Ross, 81 NY2d at 501). However, Labor Law § 241 (6) is not self-executing, and in order to show a violation of this statute, and withstand a defendant's motion for summary judgment, it must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (id. at 503-505).

Initially, although plaintiff alleges multiple violations of the Industrial Code in the bill of particulars, with the exception of Industrial Code sections 23-1.30 and 23-1.8, plaintiff does not move for summary judgment in his favor or oppose dismissal of those sections. Therefore, they are deemed abandoned (see Genovese v Gambino, 309 AD2d 832, 833 [2d Dept 2003] [where [*4]plaintiff did not oppose that branch of defendant's summary judgment motion dismissing the wrongful termination cause of action, his claim that he was wrongfully terminated was deemed abandoned]; Musillo v Marist Coll., 306 AD2d 782, 783 n [3d Dept 2003]).

Thus, defendants are entitled to summary judgment dismissing those parts of plaintiff's Labor Law § 241 (6) claim predicated on the abandoned provisions.

It should also be noted that contrary to defendants' argument, it would be improper to deny plaintiff summary judgment merely because plaintiff has not provided the testimony of other witnesses who observed the accident (Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290 [1st Dept 2002] [Court granted plaintiff, who was alone at time of accident and fell from an A-frame ladder which had no protective devices while installing a light fixture, summary judgment on his section 240 (1) claim "[r]egardless of the precise reason for his fall"]; Campbell v 111 Chelsea Commerce, L.P., 80 AD3d 721, 722 [2nd Dept 2011] ["The fact that the plaintiff may have been the sole witness to the accident does not preclude the award of summary judgment in her favor"]).

Also contrary to defendants' argument, the minor inconsistencies in plaintiff's testimony "[do] not relate to a material issue," and, thus, they do not preclude an award of partial summary judgment as to liability in plaintiff's favor (Laconte v 80 East End Owners Corp., 80 AD3d 669, 671 [2d Dept 2011]; Anderson v International House, 222 AD2d 237, 237 [1st Dept 1995]).

In any event, the Steinway defendants and the Rockefeller defendants are entitled to dismissal of the Labor Law § 241 (6) claim against them, as this statute only applies to accidents caused during demolition, construction and/or excavation, none of which was underway at the time of the accident (see Rajkumar v Budd Contr. Corp., 77 AD3d 595, 595 [1st Dept 2010] [no Labor Law § 241 (6) liability where the plaintiff's "hanging of a 300-pound mirror . . . was not done in the context of construction, demolition or excavation work"]).

To that effect, by the time that plaintiff began his cable installation work on the day of the accident, Interior's construction project was finished. In addition, plaintiff's finishing work, which was part of a punch list, only required that he move a single tile out of the way and then snake a cable through a drop ceiling that had already been fully installed. As such, without more, plaintiff's work "[did] not constitute 'construction, excavation or demolition' within the meaning of the statute" (Campbell v City of New York, 32 AD3d 703, 705 [1st Dept 2006] [Labor Law § 241 (6) did not apply where the "plaintiff was installing an amplifier to a cable television line" at the time of his accident] [internal citation omitted]; see also Lavigne v Glen Falls Cement Co., 92 AD3d 1182, 1183 [3d Dept 2012] [Labor Law § 241 (6) did not apply where the plaintiff's work, which was not part of a "broader renovation or construction project," and which involved only "the replacement of previously installed cable . . . had no physical impact upon the structural integrity of the plant"]; Montalvo v New York & Presbyt. Hosp., 82 AD3d 580, 580 [1st Dept 2011] [Court determined that the plaintiff was not engaged in construction work for the purposes of Labor Law § 241 (6) liability, where he was injured "while attempting to replace a float and rod component in a condensate pump," which required him to "remove[] a section of the grating"]; Gallello v MARJ Distribs., Inc., 50 AD3d 734, 735 [2d Dept 2008] [no Labor Law § 241 (6) liability where plaintiff was injured while "attempting to replace a . . . broken transformer located above a drop ceiling"]; Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430, 434 [1st Dept 2007] [Court found that "[u]nder no legitimate interpretation of the facts can it be said that [*5]splicing fiber optic cable 'affected the structural integrity of the building or structure'"]).

Moreover, as plaintiff testified that his duties on the day of the accident did not require him to create any holes of any kind, this case can be distinguished from those cases where the Courts found that the work constituted construction work within the meaning of Labor Law § 241 (6) because a structure was physically altered in some way. For example, in Smith v Pergament Enters. of S.I. (271 AD2d 870 [3d Dept 2000]), the plaintiff established that construction work was underway at the time of the accident, by demonstrating that his work involved an alteration to the building. In that case, the plaintiff's work required him

"to run cable from the server located in one room, up a pillar into the area above the eight-foot drop ceiling and then drop it down through the interior walls to the location in the various rooms where new computers were to be installed. To accomplish this installation, plaintiff needed to remove ceiling tiles and, using a saw, cut holes in the sheetrock walls near the computer work stations"

(id. at 870).

The case of McLean v 405 Webster Ave. Assoc. (98 AD3d 1090 [2d Dept 2012]) can also be distinguished from the instant case. In McLean, the plaintiff was injured while installing micro ducts in a dumbwaiter shaft through which fiberoptic cable would be run. Unlike the case at bar, the plaintiff's work in that case entailed creating "holes in the walls of the dumbwaiter shaft," which "satisfied the definition of alteration of a building or structure" (id. at 1094; compare also Joblon v Solow, 91 NY2d 457, 461-462 [1998] [Labor Law § 241 (6) applied where, in order to install a wall clock, plaintiff had "to extend the electrical wiring . . . through a concrete block wall . . . tap an existing power source . . . run wires encased in conduit . . . break through the wall . . . with a hammer and chisel, and ultimately direct the wires through the wall"]).

Thus, as Labor Law § 241 (6) does not apply to the facts of this case, the Steinway defendants and the Rockefeller defendants are entitled to dismissal of said claim against them. Accordingly, for the same reason, plaintiff's cross motion for partial summary judgment in his favor as to liability on those parts of the Labor Law § 241 (6) claim predicated on alleged violations of Industrial Code 12 NYCRR 23-1.30 and 23-1.8 is denied.

The Steinway Defendants' Contractual Indemnification Claim Against Cheung

Additional Facts Relevant to This Issue:

The Lease Between Steinway and Cheung

As noted previously, Cheung entered into a lease with Steinway for use of the Premises as a business school (the Lease). The Lease contained an indemnification provision (the Indemnification Provision), which stated, in pertinent part, as follows:

"[Cheung] shall, at all times and at its sole cost and expense, defend, indemnify and hold [Steinway] . . . together with their respective agents, affiliates, employees, partners, members, officers, directors and shareholders (collectively, the "Indemnitees") harmless from and against any and all claims, suits, actions, damages, reasonable fees and disbursements of attorneys . . . which may arise in connection with any claims, suits or actions, the investigation thereof or the defense of any action or proceeding brought thereon, or from the enforcement of this indemnity, or from and against any orders, [*6]judgments and/or decrees which may be entered or which may arise, wholly or in part, with respect to any person(s) or property on or about the Demised Premises . . . , except to the extent such injury, loss and/or damage is due to [Steinway's] gross negligence or willful misconduct"

(the Steinway defendants' notice of motion, exhibit F, the Lease, the Indemnification Provision).

At an oral argument held on October 18, 2018, Cheung stated that it did not oppose the Steinway defendants' motion for contractual indemnification against it, based upon the Indemnification Provision in the Lease.

Thus, the Steinway defendants are entitled to contractual indemnification as against Cheung.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that the part of defendants/second third-party plaintiffs Steinway, Inc. and 111 West 57th Street Associates, L.P.'s (together, the Steinway defendants) motion (motion sequence number 005), pursuant to CPLR 3212, for summary judgment dismissing the complaint as against them is granted, and the complaint is dismissed as against the Steinway defendants, and the Clerk is directed to enter judgment in favor of the Steinway defendants, with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that the part of the Steinway defendants' motion (motion sequence number 005) for summary judgment in their favor for contractual indemnification as against defendant/third-party plaintiff Cheung Kong Business School d/b/a CT Corporation System (Cheung) is granted; and it is further

ORDERED that defendants/third-party plaintiffs Rockefeller Group Technology Solutions, Inc. d/b/a Rockefeller Group Technology Solutions, Inc. and Cheung's (together, the Rockefeller defendants) motion (motion sequence number 006), pursuant to CPLR 3212, for summary judgment dismissing the complaint as against them is granted, and the complaint is dismissed as against the Rockefeller defendants, and the Clerk is directed to enter judgment in favor of the Rockefeller defendants, with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that plaintiff Scott Emery's cross motion (motion sequence number 007), pursuant to CPLR 3212, for partial summary judgment in his favor as against the Steinway defendants and the Rockefeller defendants on those parts of the Labor Law § 241 (6) claim predicated on alleged violations of Industrial Code 12 NYCRR 23-1.30 and 23-1.8 is denied; and it is further

ORDERED that counsel are directed to appear for a status conference in Part 34, 80 Centre Street, Room 308, on January 10, 2019, at 2:15pm.

Dated: November 26, 2018

ENTER:

CARMEN VICTORIA ST. GEORGE, J.S.C.