Lopez v LMA Group Inc.

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Lopez v LMA Group Inc. 2019 NY Slip Op 30259(U) February 1, 2019 Supreme Court, New York County Docket Number: 153373/15 Judge: Sherry Klein Heitler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 SUPR.EMB COURT OF THE STATE OF NBW YOU COUN'IY OF NEW YORK: PART 30 •••• •• •••• ••• .................. •• ......................x, ~~ CUAUHTBMOC L0PBZ ....... Index No. 153373/IS Motion~ 002--003 Plaintiff; DECISION ANDORDU. LMA GROUP INC.t JOHN D. LAMB, and DAV1D !. STUl'ZMAN, Defendants. ••••••••••• ~ ....................... ••••X LMA GROUP INC., JOHN D. LAMB, and DAVID E. STUTZMAN, Thinl•Party Plaintiffs -apinst· J&J FLOORMASTIRS, INC. Third-Party Defendant. ·-·--·····--····· .' .. -.-----------------..-x SllERRY KLBIN Bltl'LU.J.S.C. Motion Sequence 02 (MS 02) and 03 (MS 03) are consolidated for dilpolition. In MS 02, thlnS..party defendant J&J Floonnasters, Inc. (J&J) mo\189 punuant to CPLR 3212 for summary judgment dismissing the third-party complaint in its entirety. In MS 03, defendants LMAOMp.lnc. (LMA), Jolmp. Lamb, and David E. Stutzman (collectively, I>efendants) move to dismiss Plaimfff1 Labor Law claims and for an order of condition'1 COJd:raC$UaJ indemnity apinst J&J. 1 Plaintiff Cuauhtemoc Lopoz cross-moves for leave to amClnd hi• bill of particulars to allege violations of tdditlonal Industrial Code provisions and for summary judpent against LMA / While the natice of modem only references Messrs. Lamb Ind Stutanan. it is clear ftom the papers and &om court confcrencel that Deftlildamts lftl seeking to dismiss the complaint in itl entirety. 1 [I) 2 of 20 [*FILED: 2] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM INDEX NO. 153373/2015 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 02/04/2019 Group, Inc. on his Labor Law 240 and Labor Law 241(6) claims. The motions and Cl'08HllOtion arc decided u set forth bok>w. MQIGIQllJP Pllintiff wu ~ Wlten be fell thfouth an unprotected floor~ 1t acoastrucdon site at 397'B1eecket Stroot in Manhattan. He timely commenced this action apimt tho Defendants on April 7, 2015. In tum Defendants filed the third-party complaint •pinst J.t.J on July 6, 2016. In bis complaint Plliattft' alleps that bis injuries were the result of Defendanta' Labor Law violations. 'Ale tllinl-party ~asserts a common law claim for contribution and a contractual indemnification claim. It ii unditp\lted thlt. the allepcl subcontract between LMA and Ja.J WU not siaaed by either perty.2 Notwi~ LMA argues that both sides were operating undlr Qio..,. of the 5'lbcontract when Plamtitf was injured and that they are bound by its terms~ Jn televant part, the suheoatiact providet: Subcontractor wtlf tmn• all labor, materials, supeMsion, and items nsqulrtcl for the prop« and complote pestomtuoe of the WOik ••• Subconttactor shall be liable for any damages incwTed by LMA as a co9"C1ueaee of the fidlure by Subcontraotor to comply with the Subcontract. To the ftdlest - . pennitted by law, Subcontractor shall indemnify an4 bold bermlcss the Owner and J..MA.·Onnap and their agents and employees from and agaialt ·claims ••• arisina out of or ...uJdna &om the performance of the Wort, provided that 411'Y such claims, .u damages, lOSlll or·expenses are ••• caused in whole or in part.by any .,Upat act or omission of the Subcontractor •••• In support of ita position LMA submits the deposition testimony of ll..U Bukharin3, who was LMA's maaapr for the Bleecker Street renovation project, as well as a number of emails between LMA and J&J representatives in tho days leading up the accident. Mr. Bukharin testified that be had dealt with J&J many times prior to this project and that they always operated under the 2 Defendan11' exhibit B. J Det"endlms' exhibit H(Bukharin Deposition). [2] 3 of 20 [*FILED: 3] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 same basic ap:ement With respect to the BJoecbr Street project, a June S, 2013 email ftom Mr. Bukharin to LMA's foreman (Exhibit P, p. S) lndl°*8 his belief that the subcontract price bad been . set and that a draft ofthe IUbcontract had been eent to J&:J for approval. Two days later, on June S, 2013, Mr. Bukhirin roceJved an invoice from JctJ seeking a 50% deposit ofS17;J.72.75 for their work (Id. p. 7). This it precisoly 50% of the contract price set forth in the IUbcontract. J&:J OWIJel' JOH Sutiago was deposed on February 2, 2017.4 He c:Qnftnned that iMA hired J.t.J between five and ien times prior to the Btec;cker Street project. If LMA decided to use J&J for a project and tbe comn.ct price was agreed upon in principal, LMA forwarded ~.tJ a standard two- page agreement for slptture. J&J would then send a deposit demand for 50% of the contract price (Santiaao Deposidon, PP• 12-14, 20-22). An email chain was marked as evidence at.Mr. Santiago's deposition (exhibit F), LMA argues that a June S, 2013 email in the chain &om J&J to LMA is proof that the parties wert operating under a contract: "Attached is a depoalt iftvoice for 397 Beeker st [sic] that we will be ltlU'ting tomorrow. Deposit is for SOOAI of conuact. We should be at the jobsite tomorrow between 10:30-1 lam. Please let us know when a check will be available for us to pick up. Thanks and looking forward to working with you guys on this projeot••••" Mr. Santiap ooaftrmed that the custom and practice between LMA and J4J would be for LMAtoissue a &aft coatract and for JJ then to issue a deposit invoice for 50% of the contract price. He tcsdfted that tt was his intention to sign the agreement and that he was paid by LMA after the work was completed (Santiago Deposition pp. 24-25, 32). Consistent with the subcontract, J&J also obtaiaecl Worlcm Compensation and Oeneral Liability Insurance (Id. pp. 33-38). The CCltileates list LMA 11 an· additional insured. 5 " Defeadlnts' exhibit l (Sandago DepOsition). ' Defendan1s' exhibit J. [3] 4 of 20 [*FILED: 4] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 Mr. Santiago visited the construction lito before bll company started there. He observed opaninss in tho t1oor encl barriers around certetn vep which be believed were installed by LMA Q. When you say a. you had to patch the holta. tbOy're literally on the floOr? At that p:oject there._ aJreacly an existifta bole th-. A. Yes•••• Buically, you see beams exposed aad there is space between the beams.. Q. Got it. So do you have to remove the actual flooring to do this or no? A At that particu)v pioject there was already an existing hole there. Q. What was the oddng hole ftom? A. That's liom the OC. They had done some demo. I'm not exactly ue what was there Wore. •••• neuma. Q. Does your comptny have any safety devices on the job site, wall•, toeboards, thinp of th.i .-e. to make and block oft' any openings on the tlOOf.7 A. That WIS suppoaed to be provided by the OC. Q. Did they, in fact, provide any of that stuff1 Would you not know or wu it not there? A. It wu there before we started the job. rm not sure ifafter we stmttd die job it was taken out. Q.. How do you know it was there before you started? A. Because l looktd at it myself. Q. When you went th«e before you started the job, did you see any openings in the ftoor? A. I saw aome opeatap in the floor. Q. can you.4eacr1be what you saw? A. Rectanaullt thlped holes in various locatiom ••• One of them I just remember off the top ofmy held was a rectangular shape. It could be maybe like 2 feet by 6, 7 feet long. Q. Where WU that located? A. Right up the ttaln. Second floor by the - between the livin1 room llld I don't even know what tho next reom is called. It's coming out of the living room to tho other room. Q. Do you know if that's the hole that Mr. Lopez fell in? A. rm not sure. Q. Whin you saw that hole, was it protected in any fashion? A. It was protecte4 by 2-by-4's that was bracing it. •.. Q. Was it laid down over the floor or over the hole on the floor vertioally surrounding the hole. A. Around...• (4} 5 of 20 [*FILED: 5] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 Q. Do you know who created it? A. I would assume the GC. Plaintiff was deposed on February 17, 2016.• He testified that he had worked for J&J for some lime, but the day of bis accident was bis fl11t day OJt the jobsite at 397 Bleeeker Street. Plaintiff was assiped to assist in the 4emolition proce., by removing nails from the wooden floor beams. As he moved from beam to beam.his left leg would be on a beam that had yet to be removed and bis right lea would be on a portion of the floor where the beam luKI already been removed and there wu siothinl beneath him but insulation. At one point he loat bis balance, fell into the bole,- and bit hit head. Fortunately, only part of his body went into me opening and he did not fall to the floor "'1ow bim. Instead his feet dangled beneath the beams utll a colleague was able to assist him (Lopa Deposition pp. 78-83). The Plaintiffdescribed hit acc:ldent as follows (id. pp. 78, 81-83): Q. Tell me how your accident happened. A. I was squat [sic) down pulling out nails. Moved in a ,(er/ peculiar way my right leg, and I ended up in a-.· Where it was not floor anymore, it was kind of an insulation. I fell down, down ialide that area, and I was - ended up hangina or clanalina from my left leg to the degree diat my both arms [sic] were stuck between the two beams. At that - in the beat of the lllOl'QOl'lt, I hit my head. • ••• Q. Now, at some point, did you Jose your balance on the beams? A. Yes. Q. What, if an)'thlna. caused you to lose your balance? ... A. I do not know•••. Q. Now, when you ten to the righ~ were there beams to the right of you also? A. Yes, also. Q. Did your body tben go in between two beams? A. Con'ect. Q. Which part of your body went between the beams first? A. My - the right side of my body alongside With my right knee fell down first .... 6 Plain.tiff's dhibh 1 (Lopez Deposition). [5] 6 of 20 [*FILED: 6] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 Q. Did your left 'es go tblly through tho two"-? A. No, because I wa managHta to hold myRlf wlth my two arms. Meaawhilo my left leg was twUted ~there. · . Lee Mamtet1 WIS also deposed 6n behalfof LMA.1 He testified that tho renov4ltion project iawolved a town i.o.... ownec1 by defendants Lamb and·Snatzman. LMA w• 1*ed as the gen..t contractor, which thlP. hired subcontractors to portbtm the actual ~ Aocording to Mr. Mennen LMA had no control or iuput over the manner in which the subcmmador1 ,.rormett their tasb llid did not maaaae site ntety issues. He conceded that there was no siped oopy of the tubcontract with l&J ~ Depotidon pp. 11, 21-23, 80). pJIC\l§IOtf "Summary j~ is a drastic remedy, to bo anntod only where"" moving paity bu &tender(ed] lllfticieat evidence to demooserate the absence of any material . _ of fact' and then only if, upon tho movbta party's meeting of this burden, the llOJHl'l~Pll'tY f4i)s 'to establish the .....,. ofmaterill '"'*of fact which require a trial of the action.'" y.,_ v ll#talll Colutr. Corp., 18 NY3d 499, 503 (2012) (quotins .Alvarez v ~t H~., 68 NY2cl 320, 324 [1986]); ieea/MJZuclr.mliln v City ofNew York, 49 NY2d 557, 562 (1980). wrhis bunten is a heavy one aad on a motion fot ~judgment. facts must be viewed in the li&bt moai favorable to theoon- movingparty." ~ v New (quoting William J. J._. York City Health & Hmpa. Corp., 22 NY31'24, 833 (2014) Estate Appraisers & ...tuctloneen. Inc. v RabiztM#h, 22 NY3d 470, 475 [2013D. "[R]ank ·speoulttion is not a substitute for the evidentiary pJOOf in admissible fonn that is requftd toeatlblbb the existence of a triable question of matmal fact" Ctlllorw v 1Utto &tM Ralotnnt Inc., 77 AD3d 599, 599 (lst Dept 2010); see also Kane v Eatla 01Wk Rut., Inc., 4 AD3d 189, 190 (1st Dept 2004). (6) 7 of 20 [*FILED: 7] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 L INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 Plaladft"s Laber Law Oabm Pn>cedurally, •court rejects bolh Plalntlft't end Defendants' contentions that their ...._._, motion..,.,. me untimely asadlor ptOOlldurally defective. Thct oourt met with the Jlldias numerous times to discuss these motiOftl and pve each party a tUll opportunity to put in pepen. As such tho court bas searched tho reccmJ in its •ltirety in decidina theae summary juda,ment motions llld wDl consider each claim on i1s merits. A.. Rem1a....n' an.,tlOll- Lamb and StldZnlall Both Labor i...w 240(1) and Labor Law 241(6) exempt' owners of OM or two-family . dwelQas from lilbillty where they do not direQt or control.tho injury.ca'*"' work. Lombardi v Stovt, 80 NY2d 290• 2f6.97 (1992); Caltnon v Putnam, 76 NY2d 644, 649 ( t PSJO). The exemption shoukl apply wh«e k It clear the dwelling is used solely as a one or two-telly dwellina and the homeowner does not oontJOI the work. Putnam v Karaco Indus. Corp., 253 A.P.2d 4S7, 458 (2d Dept 1998). Here, 111 d.klavit sworn to jointly by Messrs. Lamb and Stutzman• atabliahes their prlma/tlde mdtlemtira to smnmary judgment. They aver that 397 Bleecker Street was their principal resiclenco al tbat the upper floors where the Plaintiff wodted wore bain1 renovated "ao1ely 1br NSidlntial purpoaes.n They did not direct. supervise, or control tbt oontnaoton, provide them wltll any equipm.tat or tools, and had no knowledge of the Ptamtiff or his acdvities. The - . . ii Pletndfrs claim that the building was partially used for commercial purposes, which Defenclaats l*dJ!ly concede: "While the first floor of the town h01ltO does have a commercial purpose, all flooa above the fint floor are sbictly residential, no~ activity of any kind oecurs· abow tbe first ftoor•." Jn this regard. it is settled New Yodt law that owners cannot ~t ftom the bomeowners' exemption if the property is used ~tirely and aolely for commerdal purposes." Yan Amll'Opn v Donmni, 78 NY2d 880, 882 (1991 ). But it is equally settled that a • Dcfeadlnls' oxbibit K. [7] 8 of 20 [*FILED: 8] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM INDEX NO. 153373/2015 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 02/04/2019 mixed-use home can qualify for the holnooWMt~ In Bartoo v /Jwll, 87 NY2d 362, 368 (1996), the Coult of Appeals noted that "a . . . . . . that houaea a business may nevertheless retain its dmactcr ua._." llld thus still quallf/ for dto ~er exemption. ~ whedBDr tile con"8Cttd Tho stanclant is tor work "directly,.... to tbt felidential use of tho home, even if the wost allo serv• a commercl'1 pmposc". Id.;'" a&o KMla v Neiger, SS NY2d 333, 337 (1995) ("dotmninatkm whither the exemption is available to an owner in a particular oase turns on the site and-pmpoae of the wo$."). For example, a homeowner who hires someortt to pihlt a living room is prOtOded by tho..,.._ even though the ~er also maintains• "'111.-a on the pNperty. S. Ctmnon v 1'vtnam, 76 NY2d 644, 649 ( 1990); see also U""'"'°' v Charla Hofer PalntilJB & Wall,..,.,. Inc., 48 AD3d SS2, SS3 (2d Dept 2008). The ex.,UOO has also been applied to shfaalma work being performed on the roofof a building that h°'1llCI •business on the tint floor because tho hoatoowners occupied the second and third floor as their •deaco. See Johnson v Fox, 261 AD2d 782(3dDept1000). This case is virtQelly indistiuguisbablo from the mixed-use cases cittd abQve and as such the court finds that M-- Lamb and Stutzman qualify for the homeowner ~on. Plaintiff's iqument that tho tel~ Ooor . . - somehow mipt be related to the commercial space is not supported by tho reoonS. Althoulh tbe hoawowner exemption is unavailable as a defense to Ulbility under Labor Law 200 or for common-law nealipnce, the standard for liability on these two bllel is the same as for the Gemption. lnumuch as the evidence points to Messer_s. Lamb and Stlatlmln having no supervilory contsot OW1f 1he construction site and/or the specific activity tb.i caused Plaintifrs injmy, they are entitltcl to summary judgment dismissing all claims against tbom. (8) 9 of 20 [*FILED: 9] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 B. Laber Law 241(6) Labor Law 241(6) hnposes a~· duty upon owners, connoton, and their aaents toJn>vide reasonablo lllfS adequate protocdoa usd llfety to workers: _,owners AU omuraeton and their""*' txoept owners of one and ._.family dwelbp who ~ for but do not clireoi or control the work, when oonatructiaa or danolishiaa bulldiap or doing any acavadq COlllleCtion therewifht thell comply with m the followiagrequtftrments: •••• 6. All lftlll in which construction, excavation or demolition work is beina performed shall be so constructed. tlt«ed, equipped. guarded,~ operated and u to. provide NllSOlllblt d adequate protection and safety to the penons ~therein or tawtWly ~ 9'lCh places. The [New York State Commisaioner OtLaborJ may make rulcl to .sy into effect the provisions of this subdivision, ovmors and contrad.Or$ lbd u.lr apnts for such wort. except owners ofone and iwc>oftmi)ydwelliDp who COlltrlet do not direct or con1r0I the work, shall comply theswfth. °'*lSCtecl and._ for• ToNCOVerclamapsooaLabor Law241(6)causeofaetion, Plaintiffmustlltlblish-aviolationof an Industrial CCHh provttton which sets forth specific safety standards aod Chat Ndl violation was a proximateeausc ot'hll·tceident. Rizzuto v LI. Wenger Contr. Co., 91 Nncl 343, 350 (1998). 11ae Inclastrial Code provisions in Plaintiff's original biUofparti~ do not apply to tills cw (12 NYCRJt 23·1.7(a), overhead hazards; 22 NYCRR 23-1.7(d)-(e), slipping and trippiq ,) hazards)'. PWntift' now moves to amend bis bill of particulan to allege violatioal of 12 NY<?RJt 23-1.4(b)(13) 10 (~on Wort) 12 NYCRR 23-1.5 11 (General RCIPQllllbilftyof-Employm), 9 To the extent Plllnttfl' ...... that tbcae sections do apply, the court finds othorwile. The f'acu do not support a clllm that Pl*fff was irU\Rd due to a fallina object or because of a sUppial or trippiaa bmnL IO "Coalcnlction ~ All work Of the types performed in the comtruction, erection, alhnlion. rwpair, maintemnce,.,..... ~ ofbuiklinp or otheutructwes, wketbcr or not IUOb wort is performed in proximate Nlltion to i tp1Cifio buildina or other structure and includes, by way of illustration but not by way of ffmitaticm, the work <tf hoisting, land clearing. eartJt ntoviag, grading. excavatiq, -~pipe md conduitlayin& IOld • bridae consuuction, concretin& cleaning of the iDcludiag windows of any buikfina or oti. ltn*W'O under conatn1Ction, equipment inatll1atfon and the ~ lnatallation of wood, metal, .._, pladc, masonry and other building materia11 in any form or for any purpose.'• °' exterior..,._ or II 12 NYCRll 23·1.S, . .tied "CJenesa1 nspomib11ity employers", provides in ...evtnt part that "[a]ll places where employea ere aufferod or permiued to perform worlc of any kind in cor1111\1Ctioa. demolition or excavation opentiona lflall be ao constructed. equipped, manged. operated and con4ucted u.to provide swonable-1 adequatt protection for the lives, health and safety of aucb persons aa well a of persons JawftdJy hqudaa the aNI of such activity" [9] 10 of 20 [*FILED: 10] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 12 NYCRR 23-1.7(h)12 (Protections tiom Oeawa1H. . . .),and12 NYCJUt 23-3.3(0), G> and (l)ts (lnspec:dons aad Floor Openings). Of these, lnduitriaJ Codes 23-1.4 and 23· 1.5 ans not sufficiently speolfte to Support a Labor Law241(~) claim. S.. (Wayv Balling Cmutr. Co., 239 AD2d 913, 914 (4$ Dept 1997); aee also &curra "UbGty Conlr. Corp., 2009 NY Misc. LBXIS 4495, *13 (Sup. Ct. NY Co. Dec. 21, 2009, Sllafer, J.). And whllo Industrial Codes 23-1.7 and 23.3.3 are sufficiently specific to support a LaborLaw241(6)olaim(Amato 11StateofNllW York, 241AD2d400, 402 [lit Dept 1997]; Frelta8 v New York Clly ». Autli., 249 AD2d 184. 185 [1st Dept 1998D, neither apply to the facts of this In Ur6an v No. S 7Yma Sq. Dttv., LLC, 62 AD3d 553 (1st Dept 2009); the Piist Department held that a 10..12._.. pp is not a "bazardous opening" for purposes of Industrial Code 23-1.7. Sile aJao Brown" N~ York-Presbyterian HealthCare Sys.• Inc., 123 AD3d 612, 613 (1st Dept 2014}(Jadustria1Code23-1.7 applies to~ that persons can fall throu&b in their entirety."); Ltlpo v Pro Foodl, UC, 68 AD3d 607, 608 (regulation appties to openinp of"sipiflcant depth and size"). This CllCl it bsditdnguishable ftom Urban. The·Plaintitf testiftod that the width between the bcama where be fill was bctwoen 1o and 12 inches and that he did not fill oompletely tbrouah 12 NYCRR 23-1.7(b), dtlcd ~ection from general hazards", provides ill Nlevant pct that "'Every ....,. opening 1$ which a person may step or fall shall be panled by a tubtfadal cover fastened in place or by a afety niUJlg ~and installed in complianc:e with this Past." · 12 13 l2 NYCRR 23-3.3 pnwides: (c) Inspection. Duriq hapd demolition opcrati~ ~inspections shall be made by desipated penom a the to detect any hazards to any penoa resulting from weQ;enod or deteriorated loon or wa1ls or ftclm. kxllened material. Persons shall not be sutfenld or permitted to work wl1ere such hmRll exlat ~ prottadon bu been provided by shoring. bracing or other oft'eodvo means. (j) Floor apealop •.•• Durinl the demolition of my buildina or other structure\>)' blQd. the auroaato area or openinp in the floor ~Y beneath the floor belns demolilbed shall not oxoood 2S pen:ent of the tctal area of such ftoor. ' (J) Sate foodna required. Any person womn, above the rust ftoor or ground level in the demolition of any building or other ltn10lUre ahall not be suffered or permitted to use agcgmu}ated debris or piled materials 11 a footiDa in the perto.,... ofhis work. Bvery penon shall be pl\Wided with safe footJag comisting of sound flooring, plankiaa llOl I •·thin two inches thick full size, adequately supported exterior arade plywood at least fhree.qmrten inch thick or other material of equivalent ltftmgth. work,......,.. .· . (10] 11 of 20 [*FILED: 11] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 the opening to the floor below him (J)efenduta' exhibit C, pp. 73, 78). In addition, the opening wu transient in that the hole only came to txitt • a result of Plaintiffs own wort removing the / floor planks. A 12 NYCRR. 23·3.3(c) violation occurs where the hazard arises from structural instabilities caused by the pro8flll of demolition but not by the performance of the woJk lt&elf. See Garcia v 225 E. S7th St. {}wrfm, Inc., 96 AD3d 88, 92 ( lst Dept 2012). For examplo, in Medina v City of New York, 87 AD3d 907 (1st Dept 20111 plaintiff was working in a subway umnel as part of a fiveyear sipa1 imPJOVOlftlftl contract. The First Department found a 12 NYCM a3•3.3(c) violation had occurred~ a seodcm of subway rail Another examplt is that pl.mtiff was cutting sprang ho end fell on him. on.,a v Everest Really LLC, 84 AD3d 542 (1st Dept 2011) in which the plaiatiff was.h\jured ·wbeft the wall of an aluminum shed fell on him as be wu aawing through it. The court found that thm was an issue of fact whether the wall fell as a •torstructural instability caused by tho vibrations. Here, unlike Medina and Ortega, it is evident that Plaintiffs h\juries did not flow fiom any latent structural weaknesses in the buildina. 14 Aceonliagly, Plahltiffs motion to amend his bill of particulars is dealed. ad Plaintiff's Lal>or Law 241 (6) clakN are dismissed, in their entirety. c. Labor Law 241(1) Like Labat Law 241(61 Labor Law 240(1), commonly known as dao scaffold law, createS a dUty that is nondelepble, and owners, general contractors, and their agents who breach that duty may be held liabJo reprdless of whether they actually exercised supervision or control over the ia\jury....._ work. Rau v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). Labor Law 240 provides: 14 Deftadams assert that the provisions of 12 NYCRR 23-3.3 regarding floor opeainp and safe footings do not apply to this case. Plainciff does not point to any e\ridence to the contnuy. (11] 12 of 20 [*FILED: 12] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM INDEX NO. 153373/2015 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 02/04/2019 their...., but,... All contractors and owners and exoept own«s of one and tWo-family dwellinp who COldnlet for but do ·not direct or cOld.Jol the wort,· in the erection, demolition, repairing. alterio& paintin& clolnms or pointing of a or structure shall f\ami1h or erect, or cause to be t\amished or erected for the,.,,.._,. of such labor, scaft'Qlcba, hoists, stays, .....,.. slinp, ....,., blocb, pulleys......., Irons, ropes, and other devioos which shall be IO~-,,_ .... operated as to alve proper protection to a , _ IO employ«I. The •.,.,_, of this statute is to protect wotbra and to impose tho r.ponsibility fer~ . ( practices on thole bolt ...Utod to bear that responsibility ...." Ro81, 81 NY2cl at 500. Labor Law 240(1) is laked to .,Ufic gravity-related accidents, such as falling from• holaht or being struck by I Ming object that \VII improperly hoisted or inadequately secured. kJ, at 501. Det'eodants ...- that Plaintiffa injuries cannot be deemed pavity.Nlatld because the hole was not bia enouah for tUm to fall through to the floor below. See K«IWl)I ,, NY State Donnltol'y Mdlrority, 6 NY3cf 859 (2006); Ylta/e V MIOrla Energy II, UC, 138 AD3dcftl (2cJ Dept 2016); ..4Wla "Plaza Onutlwtlon Corp., 73 AD3d 670 (2d Dept 2010). K.awy afthmed a fomth Depadlnent ruling ,tbat a lix·inch gap between insulation boards staoDd 41iahi·felt high was not ' . covereclby Labor Law 240(1 ). In Yltole, plaintiff was walking across tho top of a rebar arid which W 12-inch by 12·incb equare opcnillgs whonbe lost his balance and bis left lq fell tbmugh ooeof the openiap up to hit pin. The court found that the incident did not involve IJI elovation-related haZmd becaUM dlt opealnp "were not of a dimension that would have~ the plaiatifrs body to complttoly ftll through IQd land on the floor below." Id. at 983. Uke the plaintiff' in Yitak, tt. pllindffin Avila was standing on top of a nbar grid when be Wll ~by an iron clamp and Ids lea fell hito the opening. His Labor Law 240(1) claim was dlamialed on the same glOUllds, i.e., d1at tho opening was too small for his body to fall through tht opening. Id. at 671. In addition to the.- cited by Defendants above, this court is J>Ol'l\llClod ,by Alvia v Teman Elec. Coltlr., Inc., 287 AD2d 421(2clDept2001), in which ts plaintift'wbo wu oarryingplywood slipped and his leg tell into a 12-inch by 16-incb hole in the floor. There wu no covering over the bole, and DO blnicade.ll'0U1l9 it. The Second Department dismissed plaintiff's lawsuit, finding that (12) 13 of 20 [*FILED: 13] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 "a hole of thia dimension does not preseftt an eltvadOftwreiated hazard to which the protective devices enumerated in the statute are desiped to apply." Id. ai 422; see allo Rocovich v • CO.Olltlated Edison Co._ 78 NY2d 509 (1991 ); Plmllllo v Bank ofN. Y. Co., 277 AD2d 93 {1st Dept 2000). Rather, the bole presented ~ type of peril a construction wOfbr usually eneouniors on the job site." Mlswlltl vMark IYConstr. Co., 86 NY2d 487, 491 (1995). Notwitbstanclina this binding authority, Plaintiff submits that he is entitled to summary judplent on his Labor f.,aw 240(1) claim because be was assigned to work without any safety measures to prevent him from falling. To be sure, there are many cases \\'heft Labor Law 240(1) was held to be violated when a worker fell through a floor or open pJankina. S.. Gove v POWD'ini McGovtm, UC. 110 AD3d 601 (1st Dept 2013); Ramirez v Ml'A, 106 AD3d 799 (2d Dept 2013); MalthrN8 v Bonk ofbtlrlca, 107 AD3d 495 (I st Dept 2013); Mouta v 'Es#X Market Dtw. LLC, 106 AD3d S49 (1st Dept 2013); Bahtack v Ontario Exteriors, Inc. 106 AD3d 1448 (4th Dept 2013); DwandovCllyofllew York, 105 AD3d 692 (2d Dept 2013); Burlce v Hiiton Ruom Corp., 85 AD3d419 (1st Dept lOl l); Kielar v Metrapolitan Museum ofArt, SS A03d 456 (1st Dept 2008). But none ofdlerio cues ooinpare to the case at bar. They involved falls fi'om i.ddets,· unguarded ...,_..,catwalks, pt,wood platforms, skylight opening, and large covered bot~. not a narrow openina creaaod by the injured worker himself. Even if this cw1d be considered an elevation-related baziJ.ci contemplated by Labor Law 240(1). Plaintiff cannot demonstrate proximate caUsation since Plaintiff bu '10t shown that any of the devlees enumertteC In the statute would have prevented bis injuries. For oxample, requiring Dofeadants to insllll a .catoh platfonn below the open flooring as Plaintiff argues would not have made a diffelenee since Plaintiff did not actually fall to the ground. So too would it would have been illogical to SOlllehow barricade the area, since Plaintiff's work required him to deconstruct the floor. Jn sum, Plaintiff's misstep into the open area between the beams did not result from an (13) 14 of 20 [*FILED: 14] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 elevation-related harad, but rather resulted hm u "ordinary and usual peril" not covered by the LaborLaw. D. Labor Law JOO Labor Law 200 codifies the common law d~ty imposed upon owners and genoi'al contractors to pro\lkle a safe workpltco. u See Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 352 (1998). Labor Law 200 claims are generally predicated upon a two-prona showing that the owner or coatractor either bed the 46autl)ority to control the activity bringing about the injury to enable it to avoid or correct an unaate conditi~" (Russin " Picciano &: SOn, S4 NY2d 311, 317 [1981 ]), or that it had actual or construetlve notice of the defective condition which caused the plalttdff's injuries (.ree Comu v N. Y. 81411 Eke. & Gas Corp., 82 NY2d 876, sn (1993]; Philbin v A.C. & S., Inc., 2S AD3d 374, 374 (1st ·Dept 2006). Plai~fl'statos OW he received his assignments from hisJ&J supenrlaor, not LMA's foreman. There ls also no evidence that any LMA knew or should have Jmowa·of lfty dan&erous condition at the construotlon site on the date of the accident. Accordingly, Pi.tntiff's Labor Law 200 claims ad common-law negligence claims are without merit J&.J's uterdon' 6 that this issue sbo1l1cl 1- ~ded by a.JW)' because an LMA representative was on-site at .U ttmes is without merit. 'Ibis~ merely in4kative ofLMA's general·supervisory role, and is not enough to raise a triable issue of fact. 81.1 Pipia v Turner Co111tr. Co., 114 AD3d 424, 428 (lst Dept 2014); Fiorenllno "Atlas Park UC, 9S AD3d 424 (1st Dept 2012); Foley v Consolidated Edison Co. of " Labor Law ~00 provida ln relevant part that "(a]H places to which this chapter .ppliu shall be so constructecl, equfpped. arnngecl, operated and conducted as to provide reascmable and adequate protection to the Jives. healjh aftd qfety of all ponons employed therein or lawfully frequenting such pla'*' All machinlly, equipment, asul deviees in such places shall be so placed, operated, PlfCltd, and Ii~ as to provide reuoaable and aquate protection to all such persons. The bqard may make rules to cany into effect the~ ofthla section." "Plaintiff dCMll not oppose this portion of Defelldants' motion. [14) 15 of 20 [*FILED: 15] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 N. Y., Inc., 84 AD3d 476, 477 (I st Dept 201 l); H,._ v TIMmtln Constr. c,,,.,,., 40 AD3d 30S, 306 (1st Dept 2007). Tlllrtl-P-'1 a.t.IT 0. A part)' is lfttitted to full ~ ~ftcation provided tMt ttlt intcntkm to IA htdemnify can be clearly implied fiom the languap and purposes of the entire agreement and the SUIMUlldiDg f4cts and obQamstances." IMNIMld "Atlantic Scf.dlold cl: 1AMtr Co., 70 NY2cl 774, 717(1987)(qvednsA6tlso/mvNew Yorkl..ffelns. Co.,32NY2d 149, 153 (1913]). Theputy seeking eontractual lncllm.nlfication need only establish that it was tiee tom eny active neglipncc and WIS hold liaWe IOltly by virtue of its vicarious liability. De La RDla v /Wllp MtH'f'b Mgtnt. Colp., 303 AD2d 190, 193 (1st Dept 2003). Here, this means that LMA m'Ut·tlCablith that its HeMHty, if any, la aoWY vicarious arising from the non-delegable duty impoeed by the Labor Law. S. Correla Y Profellionol Data Mgt., Inc., 259 AD2d 60, 64 (1st Dept 1999). JAJ arpea a.at the iademnification provision invoked by LMA is not lpPlicable bocause there was no~ that the conb'Bd was in etTect an the day of the aocicltat. ~ DqlOtiations wens_.., Accordina td J&J, because this was a wrushjob" and LMA wanted work to boaiaeven thouah the sabcontract was not tully executed. LMA concedes that there it no "1idence'the suboontract was ever oxocuted but argues that J&J is nonetheless bound by tts wrms given the padies' respecdve ..._ In support LMA cites to the COurt of Appeals dtoisiort Flora v 71ie Lowr"East . Side.,., CMter, 4 NY3d 363 (2005). In Flora a building own• negotiated an . qreement with a general contractor to perform renovation work. The propoaed .asr-nmt contained a provision requiring the contractor to indemnify the owner for Jn,Nries arising out of the work. la llCOnlanoe with the qreement, the contractor purchued liability lnMIDCe and obtained 11 Tho tb,bd.pDty c.._ must be addressed despite the court's ruling on Plaintitr1 Labor Law claims aiven Defeadants Nq\lllt for lltonle)'I' fees. [15) 16 of 20 [*FILED: 16] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 pa~ and perfonnance bonds. INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 One of the~'• employees sustained an eye h\jury on the job and IUed the builcling owner. The owner th• fQed I third-party action apinst the conb:lelot. 'nae trial. cowt and Applli.. Division found that die ooatractual indemnification clause in the contract WIS UDlllforceable because the contractor did not sip the document. The Court of Appeals .reveaed, finding that 1htt contractor bad admitted that it acted in confonnity wUh the contractual ~by purchaaiq bonds in the amounb required in the contrect. mto doiJaa the Court nitelated its~ posidon that a contract may be valid eVell if it ii aot tiped so long as it does not. impliQM tho . . . of frauds or another statute that imposes a wrtt1Qa iequinmenl Id. at 368. Tiie Court's aul)'lls re&renced its earlier decision in Brown Bl'Oa, ·Ele. Contn. v Beam Con.ttn. Corp. 41 NY2d 397t 399-400 (1977), in which it held: "In detenniaing whether the parties entered into a con.tractua1 agreement end what were its tams, it is necesa.-y to look ... to the objective manifestations of the ~of the paties as ptherecl by their .,,..... words and deeds ..• And, while it is the retpODSibility of the court to interpret written Uaatrumlntl ••• , where a 6nding of whether an intent to contract is dependent.as well on other evideace &om which differing infttlencet mJY be drawn, a question of fact arises" . . Thus, und• the analya11 mBrown, "an unsigned contract may be enforceabkl. provided there is objective OYidence ~ng that the parties intended to be bound." Florp, 4 NYld at 369. In this cue th.ft it enough evidence of a meeting of the minds to give rile to an inrer.ce that there wu a biadina contract with an enforceable indemnification provision. The aareemmt iets forth the connci price IS S34,54S.SO. After LMA allegedly sent it for appJOVBI, J&J 8PJMl8J'8 to have immediately sent back an invoice for SO-~ of the contract price, or S17;J.72.75. TJds PflCticea draft contftlct followtd by a request for a SO% deposit- was confirmed by Mr. Santiago BDA!: Mr. Buklmin as being couistent with the prior dealings between the parties. Mr. Slntiaso testified. md JIU does not dispute, that J&J wu paid tbo fiJll contract price after the work wu completed. As required by the subcontract, J&J obtained Workers' Compensation and o...i Liability insurance policies wbich named LMA as an additional insured. Finally, Mr. Santiago toititled that he . (16] 17 of 20 [*FILED: 17] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 intended to execute the apement so long• the....._... matched"', which they did. Sn Agosta v Ftl81 $.vs. Corp.. 136 AD3d 694, 69S (2d 04lpt 2016); GalJaglter v Long h. Plastic Surgical Group. P.C., 113 AD3cl 6S2, 653 (2d Dept 2014);RfltllN v. AllM-stevenion School, 82 AD3d61S,.616 (1st ' o..,t 2011); Dwyerv CMmll Pm Slr#lloa, Inc., 2016 N,Y. Misc. LIDOS 4934, ~(Sup. Ct. NY Co.., hW'. 24, 2016, Silver" J.). But just as there were enough fids to crate a reasonable inference dtat tbe:re was a biacliDI contract between LMA pd J&J, so too can a reasonable inference be drawn tttat the parties were slill fteaotiatina the._ of their agreement when the Plaintiff was injured. In this roprd, it bears t'foatiag that I.MA bu neve.r been able to produce a ftdly executed...-..~ nor does it claim tbat eae--. Tho _.ls and other documents do not indicate when the partitl intended for 1be temm of the~ to go into eff'ect. Perhaps this is because, as J&J COlfeads, the parties were still working out tho «trms in the days before Plaintiff's accident. This is bontt out by a June 5, 2013 emm1 &om Mr. B'*11arin to Mr. Manners in which he states that be Wll tl'Jhlg to negotiate J&.rs cltpotit doWll to 30%. 11 While J&J does not dispute that it WIS paid the contract price,Jbere ii notlrina to mow when ud how much J&J received as a deposit lfin fiaot lt received its deposit after Plaintitfw il\jurtcl, or an amount different fiom the 50% ~ .lhtt would call into question LMA's clailft that the subcontract was in eff'ect at the time of Ibo Mcidenl F'Ulllly, there ts no evidence to support Defendants' claims against JctJ for contribution and common-law indtmniftcation. An employer is entitled to the protections ofWCL 11 19 if it pavvides II DefeDdaats' exhibit f, provkles that ,;a)a employer shall not be liable for contribution or indemnity to any third person baled upon lill>Dity for iqflaies sustained by an employee aetins within the ICOpO of hi• or her emplo,.,_. 19 WCL.11 for such employer ualel1 suoh third person proves tbroush competent medical ovldenco that auch employee Im .......... a •paw iqJury' which shall mean only one or more of~ followifta: dCllth, permanent~ total Jon of me or~ of an mm, lea, band or foot. loss of multiplo ftnaen. lost of mul\iple fOM, parapltlaia or C11*1dplqie, total and permanent b1inclness. total and permanent loa of DOICf·IOll of ear, pcnnaneat and . . . facial disfipremenl. lou of an index finger or an ac:quked i"'8Y to the bndn causocl by ea exttmal· phylicel force iesultina in pemmnent total disability." deaa... (17] 18 of 20 [*FILED: 18] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 the iqjured employee \irith wolkera~pensatioft coveraae pursuant to an insurance policy that wain offect at the time <tf the accident. sn ~ "AflllCtl Realty _Corp., 19 AD3d 11-00 {2d Dept 2010);-. aao WCL l0.20 If an employer DMintab a valid work. .' compensation insurance potioy, claims ....... tmPJoyer are generally 1*'ted unless a writtencoatract wu ontend into. prior to an accident by which the employer exprealy qnecl to contribution or UKlemnification or the employee..._, 1 ••grave injury." WCL 11. 1be defilaition of what oonttitutos a grave ia,iury is strict and limited. 8" FleM/ng v Graham, 10 NY3d 296, 300 (2008). Nothina in Plalltlft's bill of particulars21 can be considered a grave lqjUfY. disputed by PJlilltiif. Detoadantst or anything elso in the record. This is not .AccordinatJ, JAJ's motion to dismiss~' thkd-party claim for conaractual indemnifiCation is delliecl, LMA'a motion for summary judgment on itl c:on1ractUal indemnification claim is deftiad, and ~ts' third-party claims for oontriltution - ' common-law indemnification. are dismiaed. CQNCLYllRti la Hlht of .n of tho foregoing, it is l\ereby ORDER.BJ) that thint·party defendant's motion to dismiss (MS 002) it·~ in part and denied in pmt; and it it ...... ORDBRBI> thlt Detendan1S' third-party claims for contribution and COJnMOD-law indemnlftoation IQ'O .....i and dismissed; and it is tUrther ORDBllBD'that Defendants' third-party claim for contractual indemniftcatioll shall continue; and it is filrthtr io··piovktes la~ part that "[e]vcry employer subject to this cha.pt• tMll in~ with dis~. acept u Olherwi1e provided in section twenty-fivw bereo( secuntootlpllllltion to bis ~and pay or povldc compensation for their diaab1lity or~ tom.~ lrisina out of and in the coune oftbe employment without Nprd to fault as a C8UIO of the iJVury • . •• . 29 WCL 21 SeeJ&J's exhibit f. (18) 19 of 20 [*FILED: 19] NEW YORK COUNTY CLERK 02/04/2019 12:51 PM NYSCEF DOC. NO. 86 INDEX NO. 153373/2015 RECEIVED NYSCEF: 02/04/2019 ORDERED that Defendants' motion for a QOllditlonll order of summary Judsment on their contractual indemnfficatkm claim against dle thhd-l*tY defendaat is denied; and it is further ORDBRED that Defendants' motion for summary Judplont dismi8tlal Plaintiff's claims apinstthem illfldted in itsentirety;and it is turther ORDBR&Dtbat Plaintiff's direct claiml are hereby severed and-dismbled; and it is further ORDl!RBD that oounsel in the thifd.party action appear for a complillloo conference in Part 30oa Mcllclay, Mnl 11, 2019 at 9:30AM. 1bis ~ t1m decision and order of the court. ENTER: DATED: l,,. I - I Cf (19) 20 of 20

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