Banks v Bovis Lend Lease, Inc.

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Banks v Bovis Lend Lease, Inc. 2019 NY Slip Op 30516(U) February 13, 2019 Supreme Court, New York County Docket Number: 151117/2013 Judge: Margaret A. Chan 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 03/04/2019 10:29 AM NYSCEF DOC. NO. 164 INDEX NO. 151117/2013 RECEIVED NYSCEF: 03/04/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARGARET A. CHAN PART IAS MOTION 33EFM Justice -------------------------------------------------------------------------------X INDEX NO. 151117/2013 MOTION DATE N/A, N/A, N/A THOMAS BANKS, Plaintiff, MOTION SEQ. NO. 004 005 006 -vBOVIS LEND LEASE, INC., LEND LEASE (US) CONSTRUCTION INC., THE MOUNT SINAI MEDICAL CENTER, INC., THE MOUNT SINAI HOSPITAL, MORGAN CONSTRUCTION ENTERPRISES, INC., DECISION AND ORDER Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94,95, 96, 97,98, 99, 100, 101, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 146, 149, 150, 153 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 005) 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 143,. 144, 145, 147, 148, 151, 152, 154 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 006) 155, 156, 157, 158, 159, 160 were read on this motion to/for STRIKE PLEADINGS Plaintiff, a journeyman electrician employed by third-party defendant Rigid Electric, Inc. (Rigid), sustained personal injuries on July 3, 2012, when he tripped and fell over a piece of Masonite board at the work site at defendant Mount Sinai Medical Center (Mt. Sinai) in the city, state, and county of New York. The parties appeared for oral argument on February 13, 2019 (Angela Bonello, Senior Court Reporter). This Decision and Order addresses motion sequences 004, 005, and 006. In motion sequence 004, Rigid moves pursuant to CPLR 3212 to dismiss the third-party complaint by general contractor Morgan Construction Enterprises, Inc. (Morgan) and Mount Sinai. Mt. Sinai now cross·moves for summary judgment of its claim for contractual indemnification against Rigid. Each side opposes the other's motions. 151117/2013 BANKS, THOMAS vs. BOVIS LEND LEASE, INC. Motion No. 004 005 006 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 03/04/2019 10:29 AM NYSCEF DOC. NO. 164 INDEX NO. 151117/2013 RECEIVED NYSCEF: 03/04/2019 In motion sequence 005, Second Third- Party Defendant Linear Contracting, Inc. (Linear), the subcontractor that laid down the Masonite boards at the worksite, moves pursuant to CPLR 3212 to dismiss the Second Third-Party Plaintiffs, Mt. Sinai and Morgan's complaint against it for breach of contract, failure to procure insurance, and indemnification, and to dismiss the Plaintiffs Labor Law§§ 200/common law negligence, 240(1), 241(6) claims against Mt. Sinai and Morgan. Mt. Sinai and Morgan partially opposed Linear's motion and Plaintiff opposes Linear's motion. In motion sequence 006, Linear moves to strike the note of issue as plaintiff alleges a new injury in his supplemental bill of particular. Motion Sequence 004 Plaintiff alleges that he tripped over uneven, warped and/or unsecured Masonite boards that covered the new floors as he was walking back to work in the radiology suite from the bathroom. Morgan hired Linear to place the Masonite boards on the floor to protect it. Morgan's project superintendent and project manager oversaw the subcontractors' work and site safety in this radiology suite (NYSCEF doc no 114- Conroy tr., pp 30-31, 34, 36); Mount Sinai had its own safety team (id., p 36). Article 12 of the subcontract between Morgan and Rigid states that Rigid will indemnify Mount Sinai and Morgan for personal injury caused by, arising out of, resulting from or occurring in connection with the performance of the work by and/or any act or omission of Rigid (NYSCEF doc no 100). Rigid was hired to perform electrical work at the premises. Rigid's motion for summary judgment is granted. First, there is no evidence that it created the alleged defective condition or that it had the duty to maintain the premises. Second, the indemnification provision was not triggered. Plaintiff does not allege that he was performing work at the time of his injury, instead, he claims that his injury occurred as he was walking from the bathroom on the premises to his work site. Accordingly, the since Plaintiffs injury did not occur in the course of performing electrical work, the indemnification provision is inapplicable. Motion Sequence 005 Mt. Sinai's claim for common law indemnification is be dismissed since there is no evidence that Linear's actions caused Plaintiffs accident or that it was negligent (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 374, 375 [2011]). While Mt. Sinai's opposition claims that Linear had a duty to periodically inspect the Masonite for defects, it cites no deposition testimony supporting its claim. Both Mel Conroy, Morgan's superintendent, and Joseph Orobello, Linear's foreman, 151117/2013 BANKS, THOMAS vs. BOVIS LEND LEASE, INC. Motion No. 004 005 006 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 03/04/2019 10:29 AM NYSCEF DOC. NO. 164 INDEX NO. 151117/2013 RECEIVED NYSCEF: 03/04/2019 testified that Conroy would perform walkthroughs and inspect the premises, and that if he observed a defective piece of Masonite, he would notify Linear to repair it (NYSCEF doc no 139, Conroy Trans, pp. 24:15-27:5; 43:5-23; 45:9-47:4; NYSCEF doc no 141, Orobello Trans pp. 48:22-49:7). Conroy also testified that Morgan was responsible for the protection put on the floor (Conroy Trans., 53:3-9). Moreover, Michael Cain, project manager at Mt. Sinai, testified that Mt. Sinai conducted weekly inspections of the premises, including the Masonite boards (NYSCEF doc no 113, p.24=21-25:8; 36:10-17). Accordingly, since Linear was not negligent, the second third-party complaint and all cross-claims are dismissed against it. Next, Plaintiffs claim under Labor Law 200/common law negligence against Mt. Sinai and Morgan is maintained since an issue of fact exists at to whether Mt. Sinai and Morgan had constructive notice of the alleged defective condition. Specifically, both Mt. Sinai and Morgan fail to specify when they last inspected the area where Plaintiffs accident occurred (see Jahn v SH Entertainment, LLC, 117 AD3d 473, 473 [1st Dept 2014] [holding the defendant owner's affidavit "was insufficient to establish a lack of constructive notice as a matter of law because he did not state how often he inspected the floor or that he or defendant's employees inspected the accident location prior to the accident"]). Linear's argument that other laborers or parties at the premises did not see the defective condition prior to Plaintiffs accident does not demonstrate that either Mt. Sinai or Morgan did not have constructive notice of the condition. Plaintiffs Labor Law §241(6) claims pursuant to Industrial code §23-1.7(e)(3) is dismissed because the Masonite was placed on the floor for the purpose of protecting the floor and was not "debris or dirt" (Thomas v Goldman Sachs Headquarters, LLC, 109 AD3d 421 [1st Dept 2013]). Plaintiffs claims under Industrial Code §§ 23-1.5 and 23-2.1 are also dismissed as inapplicable; Plaintiff does not address Linear's argument on these two codes (see Kempisly v 246 Spring St., LLC, 92 AD3d 474, 475 [1st Dept 2012]). However, the branch of Linear's motion to dismiss Plaintiffs section 240(1) claim pursuant to Industrial Code 23-1. 7(e)(1) is denied since an issue of fact exists as to whether the Masonite Plaintiff allegedly tripped on is a tripping hazard. Mt. Sinai's claims for contractual indemnification and breach of contract against Linear are dismissed as the parties did not enter into a written contract. Plaintiffs claim under Labor Law §240(1) is also dismissed since there is no evidence that his accident was gravity related. Motion Sequence 006 Motion sequence 006 is resolved pursuant to the annexed Order dated February 13, 2019. 151117/2013 BANKS, THOMAS vs. BOVIS LEND LEASE, INC. Motion No. 004 005 006 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 03/04/2019 10:29 AM NYSCEF DOC. NO. 164 INDEX NO. 151117/2013 RECEIVED NYSCEF: 03/04/2019 Conclusion Accordingly, it is hereby ORDERED that third-party defendant Rigid Electric, Inc.'s motion pursuant to CPLR 3212 for summary dismissal of third-party complaint against it (mot. seq. 004) is granted, and the third-party complaint against Rigid is severed and dismissed; it is further ORDERED that third-party Mount Sinai Medical Center, Inc.'s cross-motion pursuant to CPLR 3212 granting its third-party claim for contractual indemnity (mot. seq. 004) is denied; it is further ORDERED that the branch of Linear Contracting Inc.'s motion pursuant to CPLR 3212 for summary dismissal of the second third-party complaint all crossclaims against it (mot. seq. 005) is granted, and the second third-party complaint is severed and dismissed; it is further ORDERED that the branch of second third-party defendant Linear Contracting, Inc.'s motion pursuant to CPLR 3212 for summary dismissal of Plaintiffs claim under Labor Law 200/common law negligence (mot. seq. 005), is denied; it is further ORDERED that the branch of Linear's motion to dismiss Plaintiffs Labor Law 240(1) claim (mot. seq. 005) is granted; it is further ORDERED that the branch of Linear's motion pursuant to CPLR 3212 for summary dismissal of Plaintiffs claims under Labor Law 241(6) (mot. seq. 005), is granted to the extent that Plaintiffs claims under Industrial Code sections 23-15, 23-2.1and23-1.7(e)(2), are dismissed; it is further. ORDERED that the Clerk is to enter judgment accordingly; and it is further ORDERED that motion sequence 006 is resolved pursuant to the annexed Order of February 13, 2019. This constitutes the Order of the court. 2/13/2019 MARGARET A. CHAN, J.S.C. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 151117/2013 BANKS, THOMAS vs. BOVIS LEND LEASE, INC. Motion No. 004 005 006 4 of 4 D D OTHER REFERENCE Page4 of4

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