Baltazar v Sullivan Farms, II, Inc.

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Baltazar v Sullivan Farms, II, Inc. 2019 NY Slip Op 34842(U) June 25, 2019 Supreme Court, Rockland County Docket Number: Index No. 031976/2015 Judge: Sherri L. Eisenpress 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. INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------------------x JUVEL BALTAZAR, DECISION AND ORDER Plaintiff, (Motions 1-3) -againstIndex No.: 031976/2015 SULLIVAN FARMS, II, INC., SULLIVAN FARMS III, LLC, RAYMOND FARMS , LLC and RAY BUILDER NY CORP., Defendants. ----------------------- -------- ---------------------------- -- x SULLIVAN FARMS, II, INC. and RAY BUILDER NY CORP., Third-Party Plaintiffs, -againstE.TETZ & SONS , INC., Third-Party Defendant. ------------------------------------------------------------- x E.TETZ & SONS, INC. Second Third-Party Plaintiff, -aga instORANGE COUNTY SUPERIOR CONCRETE, INC., Second Third-Party Defendant. - ----------- ---- - --------- --- ----- ----- ----- ----- ---------- --x Sherri L. Eisenpress, J. The following papers, nu mbered 1 to 14, were reviewed in connection w ith (i ) Plaint iff Juvel Ba ltazar's Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, g ranting hi m partial summary judgment as to li ab ili ty on his Labor Law Sec. 240( 1) ca use of actio n against Defendants Sullivan Farms II, Inc. and Ray Bu il der NY Corp. (Motion # 1) ; ( ii) Second Thi rd-Party Defe ndant Orange County Superior Concrete, Inc. 's Notice of Motion for an Order pursuant to Civil Practice Law and Rules § 3212, granting it 1 [* 1] 1 of 15 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 INDEX NO. 031976/2015 RECEIVED NYSCEF: 07/08/2019 summary judgment and dismissal of the Second t hird-Party Complaint in its entirety along with any and a ll cross-claims aga inst it {Motion # 2); and (iii ) Third-Party Defen dant/Seco nd Th ird - Party Plaintiff E. Tetz & Son's Not ice of Cross - Motion for an Order pursua n t to Civil Practice La w and Rules § 3212 , gra n ting dismissal of Plaintiff's comp laint o n the grounds t hat no Labor Law violations occurred and the T hird-Party Defendant was not negligent and denying the motions for summary j udgment filed by Plaintiff and Orange County Superior Concrete (Motion # 3): PAPERS NUMBERED NOTICE OF MOTION (# 1)/A FFIRMATION IN SUPPORT/ EXHIBITS A-J 1-2 AFFIRMATION IN OPPOSITION ( # 1)/AFFIDAVIT OF ERNEST GAILOR/ EXHIBITS A- G 3-4 AFFIRMATION I N REPLY TO OPPOSITI ON OF DEFENDA NTS MOTION ( # 1)/ AFFIRMATION I N REPLY TO E. TETZ & SONS ( # 3) 5-6 NOTICE OF MOTION (#2)/AFFIRMATI ON IN SUPPORT/EXHIBITS A-Z/ ME MORANDUM OF LAW ( # 2) 7 -9 NOTICE OF CROSS-MOTION ( # 3 )/AFFIRMATION IN SUPPORT OF CROSS-MOTI ON/EXHIBITS A-H 10-11 DEFENDANTS ' AFFIRMATION IN OPPOSITION ( # 3) 12 PLAINTIFF'S AFFI RMATION IN OPPOSITION TO MOTION AND IN REPLY TO HIS MOTION ( # 1 AND # 3) 13 AFFIRMATION IN OPPOSITION TO CROSS-MOTION ( # 3) AND I N REPLY TO SECOND THIRD-PARTY DE FENDANT'S MOTION ( # 2) 14 Upon a carefu l an d deta il ed revie w of the foregoing papers, t he Court now rules as fo ll ows : Procedural History This is an action commenced by Pla intiff on May 5, 2015, seek ing damages for personal injuries sustained by him as a result of a fall from an elevated he ig h t w hile sta nding on a " 2 x 4 " which was located on t he right side of a w a ll , wh en he lost h is balance a nd slippe d during the course of a co ncrete delivery. Plaintiff asserts causes of action 2 [* 2] 2 of 15 INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 sounding in negligence and Labor Law §§ 240(1), 241(6) and 200. Issue was joined as to Defendant Ray Builder NY Corp. ("Ray Builder") by service of an Answer on June 29, 2015. Sullivan Farms II Inc. ("Sullivan") filed an Answer through the NYSCEF system on October 27, 2015. A third-party action was brought against E. Tetz & Sons ("Tetz"), who answered on March 15, 2017. Tetz filed a second-third party action against Plaintiff's employer, Orange County Superior Concrete Inc. ("Orange" ), who joined issue by service of an answer on November 13, 2017 . Discovery proceeded and a Note of Issue was filed on September 27, 2018. Per th is Court's rules, summary judgment motions were to be filed within 60 days thereafter, to w it: November 26, 2018. Plaintiff filed his summary judgment on October 24, 2018; Second Third-Party Defendant Orange filed its summary judgment motion on November 26, 2018 and Third-Party Defendant Tetz filed its " cross-motion " on January 4, 2019. Factual Allegations Plaintiff testified that he was employed by Second Third-party Defendant Orange on a construction project building houses at a development called Chestnut Ridge. At the time of the accident, foundation walls we re being poured and Plaintiff testified that he was stand ing on the upper level on the right side of the wall on a two by four that ran adjacent to the top of the frame of the wall, which was attached to the frame with clips . As he stood on the two by four, the cement truck was located in front of him and the chute was extended towards him. Plaintiff's task involved using a shovel to direct the concrete into the form , which required him to lean forward . Plaintiff testified that as he leaned forward, the chute made some kind of "jerk, " which caused him to react since Plaintiff believed that the chute was going to hit him . It is at this point that Plaintiff slipped, fell backwards to the right and went off the plank down approximately twelve feet to the ground. 3 [* 3] 3 of 15 Mr. Baltazar INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 testified that the plank was wet and oily . Plaintiff was not given any personal safety equipment, nor were there any harnesses, goggles or hard hats. Plaintiff's co-worker Juan Lu is Mendoza Ochoa testified as a non-party witness. Mr Mendoza Ocho testified that foundation walls were being in stall ed and when making such walls, forms would sit on ceme nt footings. Ceme nt would be poured into the form to create th~ wall. There would be two by fours run ni ng alongside the top of the form to keep the walls straight but would also be used for people to walk on. Oil would be sprayed on the form so t hat it could be easily removed from t he completed wa ll, and in the process, sprayed oil wo ul d land on the two by fours, rendering them sli ppery. Mr. Mendoza Ocho saw Plaintiff st anding on the top of the form before he saw him fall. He estimates that Plaintiff had fallen some nine or te n feet. Mr. Me ndoza Ocho noted that no protective eq ui pment was issued including safety harnesses, and scaffolding was not utilized to afford the workers at the top of the frame proper fall protection, as he had observed on ot her jobs. Jacob Mermelstei n was deposed on beha lf of Defenda nt Ray Builders. Ray Bu il ders was the general contractor on the job site, and they would have a site superintendent and project manager on site on a daily basis . Mr. Mermelstein thinks they were pou r ing fo undations fo r houses and poss ibly doing framing at the time of the accident . He was not aw are of the accide nt until the lawsuit was commenced. Ha im Zuckerma n was the site safe t y person on the job and he had authority to halt work until unsafe pract ices were rectified . Do nald James Drummond was t he driver of a Tetz truck w hich de livered cement to the acciden t sit e per a del ivery ti cket, thoug h he does not remember any a delivery to the accident site in November 2013. Joel Walter was employed by Orange as the site ma nager, and testified that Orange hired Tetz to bring concrete into t he site at Chestnut Ridge. He testified t hat each un it had a basement crawl space of four feet as per the building plans and that Orange did not constr uct any type of wall or sca ffo ld higher than four to f ive feet. 4 [* 4] 4 of 15 Mr. Walter testified FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 INDEX NO. 031976/2015 RECEIVED NYSCEF: 07/08/2019 that "scaffolds" were installed on the pane ls so that workers could walk on them and they consisted of two-foot brackets in the middle of the form. The Parties' Contentions Plaintiff asserts that he is entitled to summary judgment on his Labor Law Sec . 240(1) cause of action against defendant Sullivan Farms II Inc., the admitted owner, and Ray Builder NY Corp., the adm itted general contractor on the job. 1 He argues that at the time of the accident, hi s work activities were at an elevated height and were entirely related to the performance of the project t hat was in progress on the day of the accident . Plaintiff arg ues that he was not provided with proper protection such as a scaffold or any of the other enum erated dev ices , and was forced to sta nd on a narrow, slippery, temporary plank on top of a wall be ing poured, which was not equipped with a handrail or other barricade to prevent a fall off it. Additionally, he contends that he the failure to provide a harness was a further viol atio n. These fai lures were a proximate cause of Plaintiff falling off the two by four seve ral feet below. In opposition thereto, Defe ndants argue that there are triable issues of fact as to whether Plaintiff fell off a four foot wall or the eight to twelve feet testified to by Plaintiff and hi s co-worker. They further claim that the two by four plank, or alleged "scaffold ," did not collapse or fail in any manner, and as such, Labor Law Sec. 240(1 ) was not violated. Additionally, Defendants submit the affidavit of Ernest Gailor, a Professional Engineer, who op in es that Plaintiff fall was less than five feet; that the scaffo ld Plaintiff was provided with provided proper protection and was not defective and that no available safety equipment could have prevented Plaintiff's fall if he was working at a height of five feet or less. Defendants also argue that Pla intiff was a recalcitrant worker because a jury may be li eve that plaintiff was standing on top of the form and refused to use the scaffo ld provided. Adm issions were made in the defendants' respective Answers. 1 5 [* 5] 5 of 15 INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 Lastly , they argue that there are issues of fact as to whether the accident happened at all because the cement truck drivers who delivered the cement to the construction site both testified that they did not see Plaintiff fall and that if someone fell on the site, it "would have went through like wildfire, the gossip." Third-party defendant Tetz opposes the motion and cross-moves to dismiss Pla intiff's en t ire actions including his Labor Law Sec. 24 1(6) cause of action and Labor Law Section 200 cause of action. Despite the fact that Plaintiff does not have a direct cause of action against Tetz, and did not move aga i nst it on his Labor Law Section 240(1 ) cause of action , Tetz arg u es t hat it is not a statutory "agent" under the Labor Law because it did not direct, supervise or control Plaintiff's work. They further argue that Plaintiff's Labor Law Sect. 240(1) claim is meritless because he slipped on some unknown substa nce, rather tha n fell beca use the safety device was defective . Secon d Third-Party Defendant Orange moves to d ismiss the Second ThirdParty action wh ich was commenced based upon indemn ification language contained on the back-side of the delivery t icket, wh ich reads : "Purchaser sha ll provi de suitable roadways or approachways to po ints of de livery other than on public roadways or alleyways and w ill indemnify selle r against all liability, loss and expense in curred as a result of de li veries beyond the publ ic roadways and all eyways." Orange notes that it had no ro le whatsoever in the manner by which the concrete was de li vered; that Tetz drivers checked in with "security" upon arrival and were then escorted to the locatio n where the concrete wa s to be discharged . Both Tetz drivers testified that there were no problems encou ntered by them on the site in question as they drove their vehicles from the security checkpoint to the site of t he concrete pour. According ly, cursory rev iew of the indemnification language shows that the indemn ification-triggering event did not occur, as Plaintiff's accident had nothing to do with the fact tha t Tetz vehicles had to drive " off-road " to reach the place of t he pour. 6 [* 6] 6 of 15 INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 Additionally, it argues that the delivery tickets were given to any Superior Concrete worker who happened to be in the area of the delivery of a particu lar concrete load and thus there was no "meeting of the m inds" nor any other indicia of assent by Orange to the alleged indemnification agreement. Accordingly, they argue that the agreement was unconscionab le and thus unenforceable. Lastly, Orange argues that General Obligations Law Sec. 5-322 .1 is controll ing and holds that an indemnification clause wh ich req uires indemnification of a party even for that party's own negligence is a null ity. In oppos ition to Orange's motion, Tetz argues t hat the indemnification terms on the back of the delivery ticket are both valid and triggered by the subject accident. Tetz argu es t hat it was not negl igent and is therefore entitled to indemnification despite the lack of a savings clause in the provision. Additionally it argues t hat the agreement is not unco nscionab le because the front of the t icket directly above the signature line states that the customer acknowledged and understood all of the terms conta ined on both sides of the document. Tetz argues that by accepting the material and signing the de livery tickets, Orange demonstrated its inte ntion to be bou nd by the terms and conditions therein. Lastly, it argues t hat the terms were t ri ggered because it states that Orange "will indemnify seller against all liabil ity, loss and expense incurred as a resu lt of de li veries beyond the public roadways and alleyways." Legal Analysis The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., et al., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003), citing Alvarez v . Prospect Hosp., 68 N.Y.2d 320 , 508 N.Y.S.2d 923 (1986). The failure to do so requires a den ial of the motion without regard to the sufficie ncy of t he opposing papers. Lacaqnino v. Gon zalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 (2d Dept . 2003 ) . 7 [* 7] 7 of 15 INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 However, once such a showing has been made, the burden shifts to t he party opposing the motion to prod uce evidentiary proof in admissible form demonstrating material questions of fact requ iri ng trial. N.Y.S.2d 131 (2000), citing Gonzalez v . 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 508 N.Y.S.2d 923 (1985). Mere conclusions or unsubstantiated all egatio ns unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). "On a motion for summary judgment, facts m ust be viewed 'in the li ght most favorab le to the non-moving party."' Vega v. Restani Const. Co rp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13 (2012). Labor Law Sec. 240( 1) Labor Law Sec. 240(1) states: All contractors and owners and their agents, except owners of one or two family dwell ings who contract for but do not direct or contro l the work, in the erection, demolition, repairing , altering, painting, clea ni ng or pointing of a building or structure shall furnish or erect, or caused to be furnished or erected for the performance of such labo r, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and othe r devices which shall be so constructed placed and operated as to give proper protection to a person so employed. This statute imposes abso lute liability upo n an owner, contractor or t heir agents for their fai lure to provide or erect safety devices necessary to give proper protection to a worker who sustains an injury proximately caused by that failure. Zimmer v. Chemung County Performing Arts, 65 NY2d 513; 493 N.Y.S.2d 102, 105 (1985). This duty is non-delegable and an owner is liable even though the job is performed by an independent contractor over which the owner has no supervision or control. Rocovich v. Consolidated Edison Co., 78 NY2d 589; 577 N.Y.S.2d 219 (1993), Cosban v. New York City Transit Authority, 227 A.D.2d 160; 64 1 N.Y.S.2d 838 (1st Dept. 1996). Furthermore, it is well established that the purpose of Labor Law§ 240 (1) is the maximum protection of workmen from injury. Zimmer, 493 N.Y.S.2d. at 105. Therefore, the 8 [* 8] 8 of 15 INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 statute is to be liberally construed so as to achieve its leg islative pu rpose. Id The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of differences between th e elevation level of the required work and a lowe r level or a difference between the elevation leve l where the worker is positioned and t he higher level of t he materials or load be ing hoisted or secured. Rocovich v. Consolidated Edison Co., 57 7 N.Y.S.2d 219 (1991). Th us, La bor Law§ 240 (1) was designed to prevent those types of accidents in which a ladder, scaffold, netting or other protective devices proved inadequate to sh ield t he inj ured worker from harm directly flowing from the application of the force of gravity to an object or person. [E mphas is in the origina l] Ross v. Curtis- Palmer Hydro- Electric Co., 577 N.Y.S.2d 219 ( 1993).,, As an in itial matter, defendants Sull ivan Farms II, as owner of the subject property, and Ray Bui lde r NY Corp., as the genera l contractor for t he project, are responsib le parties under the Labo r Law. The Court is somewhat perplexed that third-party defendant Tetz argues that it is not a "statutory agent" under the Labor Law when Plainti ff does not have a direct action aga inst it nor did Plain t iff move against or argue in its summary judgment motion t hat Tetz is a proper Labo r La w defe ndant. In the instant matte r, Plaintiff has established his prima facie en t itlement to summary judgment on his Labor Law Sec. 240(1). Here, Plaintiff has demonstrated that the two by four plank, or "scaffold," was insufficient to prevent Plaintiff's fall from the edge, particularly in light of the fact that it lacked any guard ing or handrails, and no safety dev ices such as a safety belt was provided. In Madalinski v . Structure-Tone Inc., 47 A.D.3d 687, 850 N.Y.S .2d 505 (2d Dept. 2008), the court held that plaintiff was entit led to summary judgment on his Labor Law Sec. 240(1) claim w hen he was injured when he turned on a hig h-pressure wate r hose and th e pressure of the water caused him to fall off a scaffold. "The scaffold, which the plain tiff had been directed to use, had no side rai ls, and no other protective device was 9 [* 9] 9 of 15 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 INDEX NO. 031976/2015 RECEIVED NYSCEF: 07/08/2019 prov ided to the plaintiff to prevent him from falling." Id. Likewise, in Celaj v . Cornell, 144 A.D.3d 590, 42 N.Y.S.3d 25 (1 st Dept. 2016), plai ntiff made a prima facie showing of entitlement to summary judgment as a matter of law on the La bor Law Sec. 240(1) claim by presenting undisputed evidence that he "fell off a scaffold w ithout guardra ils that would have prevented his fal l. " See also Torino v. KLM Const. Inc., 257 A.D.2d 541, 685 N.Y.S.2d 24 (1 st Dept . 1999)(make-shift platform without any safety features failed in its " core objective" to prevent plaintiff from fa ll ing off of it.); Conkl in v. Triborough Bridge & Tunnel Auth., 49 A.D .3d 320, 855 N.Y.S.2d 54 (1 st Dept. 2008). In opposition thereto, Defendants and Th ird-party Defenda nt fail to demonstrate a t riable issue of fact sufficient to deny summary judgm ent on the Labor Law Sec. 240(1) cause of action. There is no merit to defendants claim that a triable issue of fact exists with respect to whether Plaintiff fell a distance of four or five feet, or a distance of eight to twelve feet. Although a motion for summary judgment " should not be granted where the facts are in dispute," the dispute "must re late to material issues." Leconte v. 80 E. End Owners Corp., 80 A.D.3d 669, 671, 915 N.Y.S.2d 140 (2d Dept . 2011). Here, whether Plaintiff fell four feet or twelve feet, he would be entitled to summary j udgme nt.. In Hoyos v. NY-1095 Ave. Of the Ams. LLC, 156 A.D.3d 491, 495, 67 N.Y.S.3d 597 (1 st Dept . 2017), plaintiff fe ll from a loading dock wh ich was several feet off the floor, wh ich had no railing, chain, demarcation or other protective safety dev ice to prevent soemone on t he platform from falling off the edge. The court noted t hat "wh et her the dock was elevated three or four feet off the ground, plaintiff's fal l therefrom cannot be described as a fall from a de minimus he ight. " !fL. Nor is there a triable issue of fact because Plaintiff's fal l was caused because he slipped and lost his balance. "A lack of certainty as to exactly what preceded plaintiff's fall to t he floor be low does not create a material issue of fact here as to proximate cause." Vergara v. SS 133 W. 21, LLC , 2 1 A.D.3d 279, 280, 800 N.Y.S.2d 134 (1 st Dept. 2005 ) . " I t does not matter whether plaintiff's fall was the result of the scaffold falling over, or is t ipp ing, or was due 10 [* 10] 10 of 15 INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 to plaintiff misstepping off its side." Id. In any of those circumstances, either defective or inadequate protective devices constituted a proximate cause of the accident." Id. Defendants argue that summary judgment must be den ied because Plaintiff's actions constitute the so le prox imate cause of the occurrence and/or he was a "recalcitra nt worker ." A plaintiff under Labor Law § 240(1) need on ly show "that his injuries were at least partially attributable to defendants' failure to take statutorily mandated safety measures to protect him from t he risks arising from an elevation differential." Pardo v. Ialystoker Center & Bikur Cholim, 308 A.D.2d 384, 764 N.Y.S.2d 409,411 (1 st Dept. 2003). As stated by the Court "there may be more than one proximate cause of a workplace accident." 19.,_ Moreover, where the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, the negligence, if any, of the injured worker is of no consequence. Tavarez v. Weissman, 297 A.D.2d 245, 247; 747 N.Y.S.2d 424 (1 st Dept. 2002). The Court of Appeals in Blake., 1 N.Y.3d 380, 771 N.Y.S.2d 484 (2003) has further clarified the defense of "sole proximate cause:" Under Law § 240(1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. FN8 With respect to the "recalcitrant worker" defense, where adequate equipment has been provided to the worker, a condition precedent to successful invocation of that defense is proof tha t the injured worker "deliberatel y refused" to use the equipment. Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555,563; 606 N.Y.S.2d 127 (1993) While such a refusal can be implied from a worker's conduct and not just from his words, the mere fact that a worker has been repeatedly instructed to use certain equipment does not in itself support an inference of deliberate refusal when he has failed to do so . .Jg. at 563; 11 [* 11] 11 of 15 Van Alstyne v. New York State INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 Thruway Authority, 244 A.D.2d 978, 665 N.Y.S .2d 220 (4 t h Dept. 1997) ; Baum v. Ciminelli- Cowper Co., 755 N.Y.S.2d 138 (4 th Dept . 2002) To even raise an issue of fact as to plaintiff's recalcitrance, the owners and general contractors were required to show that: (a) plaintiff had adequate safety devices at this disposal; (b) he both knew about them and that he was expected to use them : (c) for "no good reason " he chose not to use them; and (d) had he used them, he wou ld not have been injured. Tzic v. Kasampas, 93 A.D.3d 438, 439 (1 st Dept. 2012). Here, Defendants and Third-Party Defendant have fa il ed to demonstrate a triable issue of fa ct as to either t he proximate cause defense or the reca lcitrant worker defense . With respect to the proximate cause defense, the fa ilure to provide railings, barricades or safety harnesses on the two by fourj"scaffold" is a proximate cause of the subject occurrence and thus any action on the part of Plaintiff cannot be t he sole proximate cause . Additionally, Defendants have failed to show recalcitrance in any manner. Both Plaintiff and eye-witness Juan Luis Mendoza Ochoa both testified that Pla intiff was standing on the two by fourj"scaffold" when he sli pped and fel l. There has been no showing that any other safety devices were available, t hat Plaintiff was directed to use them or that he refused to do so . Since there are no triable issues of fact as to Defendants' violation of Labor Law Sec. 240( 1), Plaintiff is entitled to partial summary judgment on this cause of action. See Crespo v. Triad, In c. 294 A.D.2d 145, 147, 742 N.Y.S.2d 25 ( 1st Dept. 2002). Indemnification General Ob li gations La w Sec. 5-322 .1 provides in part: A convenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a build in g, structure, appurtenances and appliances incl uding mov ing, demol it ion and excavating connected t herewtih, purport ing to indemnify or hold harm less the promisee against liab ility for damage aris ing out of bodily injury to persons or damage to property contributed to, caused by or result ing from t he neg ligence of the promisee, his agents or employees or in demnitee, whether such neglig ence be in whole or in part, is against public policy and is void and unenforceable; provided that th is section shall not affect the val id ity of any insurance 12 [* 12] 12 of 15 INDEX NO. 031976/2015 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 07/08/2019 contract, workers' compensation agreement or other agreement issued by an admitted insurer ... " GOL Sec. 5-322.1 was enacted "to prevent a prevalent practice in the construction industry of requiring subcontractors to assume liability by contract for the negligence of others." Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179-180, 556 N.Y.S.2d 991 (1990). While an indemnification clause that provides that the promissor will indemnify the promisee "to the fullest extent permitted by law" has been held to not violate the GOL, there is no such limiting language in the instant matter where it requires indemnification for " ... all liability, loss and expense incurred." See Brooks v. Judlau Contr. Inc., 11 N.Y.3d 204, 208, 869 N.Y.S.2d 366 (2008). Moreover, although a party may protect itself from losses resulting from its liability for negl igence by means of an agreement to indemnify, "indemnity provisions will not be construed to indemnify a party against his own negligence unless such intention is expressed in unequivocal terms." Eqqelinq v. Ryder Truck Rental, 254 A.D.2d 789-790, 677 N.Y.S.2d 845 (4 t h Dept. 1998). Under the circumstances present in this case, the Court finds that the indemnification language contained on the back-side of the delivery ticket violates General Obligations Law Sec. 5-322.1 and the common law. In the instant matter, there are no allegations by any party that any negligence on behalf of Orange, caused or contributed to Plaintiff's accident. Tetz was the party delivering the concrete at the time of the accident and both drivers testified that there were no problems encountered by them on the site in question as they drove their vehicles from the security checkpoint to the site of the concrete pour. Given these facts, while Tetz has not been found negligent in this action (it must be noted that there are no direct claims against it for negligence made by Plaintiff), any indemnification sought by them against Orange would necessarily be with respect to their own negligence and not that of Orange. Additionally, the Court finds that the "trigger" for 13 [* 13] 13 of 15 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 INDEX NO. 031976/2015 RECEIVED NYSCEF: 07/08/2019 the application of the indemn ifi catio n cla use is not present. As such, Second Third-Party Defendant Orange County superior Concrete, Inc. 's motion to dismiss t he Second ThirdParty Action and all cross-claims is granted in its entirety. Tetz' Cross-Motion Third-Party Tetz ' Notice of Cross-Motio n seeking to dismiss Plain t iff's Labor causes of action is untimely and w ill not be considered. Plaintiff filed his Note of Issue on Se pte mber 28, 2018, and per t he Court's rules, all summary judgment motions were to be fil ed wit hin 60 days t herea ~er. Thi s cross-motion was not made until January 4, 20 19. As an initia l matter, Pla intiff has no affirmative claims against Tetz so that t his can not be characterized as a cross- mot ion. Additionally, while a court may entertain an untime ly cross motion for summary j udgment if the court is deciding a timely motion made on nearly identical grounds, entire ly different causes of action even under the ge neral umbrella of "Labor Law claims" can not be considered ide nt ical. Paredes v. 1668 Rea lty Ass oc ., LLC, 110 A.d.3d 700, 702, 972 N.Y.S .2d 304 ( 2d Dept. 2013) . Nor has Tetz attempted to make any showing of " good ca use" for its fail ure to make the cross-motion in a timel y manner. Addi tio nal ly, w hi le Orange moved for summary ju dgme nt against Tetz, Tet z is not seeking affirmative reli ef against Orange in its "cross-motion." Thus, the Court will not consider Tetz' untime ly Notice of Cross -Mo tio n and it is hereby den ied in its entirety. Accordingly, it is hereby ORDERED t hat Pla int iff's Noti ce of Motion (#1) for an Order granting summary judgment, pursuant to CPLR Sec. 3212, on his Labor Law Sec. 240(1 ) cause of act ion against Defen dants Sullivan Farms, II , Inc. and Ray Buil de r NY Corp. is GRANTED i n its entirety; and it is further ORDERED that Second Third-Party Defendant Ora nge County Superior Concrete, I nc.'s Notice of Mot ion (#2) fo r summary judgment, pursuant to CPLR Sec. 3212, and dism issal of th e Secon d Third-Pa rty Complain t and all cross-claims against it is 14 [* 14] 14 of 15 FILED: ROCKLAND COUNTY CLERK 07/08/2019 02:58 PM NYSCEF DOC. NO. 129 INDEX NO. 031976/2015 RECEIVED NYSCEF: 07/08/2019 GRANTED in its entirety and the Second Third - Party act ion is hereby dism issed; and it is further ORDERED that E. Tetz & Sons, Inc.'s Notice of Cross-Motion ( # 3) for summary judgment, pursuant to CPLR Sec. 3212, and d ismissal of Plaint iff's Complaint in its entirety, is DEN IED in its entirety; and it is further ORDERED that the parties are to appear for a conference on WEDNESDAY, JULY 26, 2019, at 9:30 a.m., in the Tria l Readiness Part. The forego in g constitutes the Decision and Order of this Court on Motion #'s 1-3. Dated: New City, New York June 25, 2019 To: All parties via e- filing 15 [* 15] 15 of 15

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