Treacy v Inspired Event Prods., LLC

[*1] Treacy v Inspired Event Prods., LLC 2019 NY Slip Op 51840(U) Decided on November 15, 2019 Supreme Court, New York County d'Auguste, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2019
Supreme Court, New York County

Peter Treacy, Plaintiff,

against

Inspired Event Productions, LLC, WORKS IN PROGRESS, INC., CLARK TRANSFER INC., FAIREXX, MICROSOFT CORP., US TECHS, EXPERIENT, INC., CONFERENCE DIRECT, EASTSIDE CONTAINER, PORTS AMERICA, INC., PORT NEWARK CONTAINER TERMINAL ("PNCT") and MARRIOTT INTERNATIONAL, INC., Defendants.



653010/2012



Appearances of Counsel:

Attorneys for Plaintiff:

Kenneth John Ready, Esq. & Gregory S. Gennarelli, Esq.

Kenneth J. Ready & Associates1565 Franklin AvenueMineola, NY 11501

Phone: (516) 741-6800

kenneth.ready@readylawfirmny.com

gregory.gennarelli@readylawfirmny.com

Attorneys for Defendant Ports America, Inc. & Port Newark Container TerminalScott W Bermack, Esq.

Weber Gallagher

1500 Broadway Suite 2401

New York, NY 10036

Phone: (646) 585-7004

sbermack@wglaw.com

Robert Suarez, Esq.

Ropers Majeski Kohn & Bentley

750 3rd Avenue, Suite 2500

New York, NY 10017

Phone: (212) 668-5927

robert.suarez@rmkb.com

Attorneys for Defendant Inspired Event Productions LL" target="_blank">Soto v. J. Crew Inc., 21 NY3d 562, 566 (2013) (quoting Labor Law § 240(1)); see also Martinez v. City of New York, 93 NY2d 322 (1999). For claims under section 241(6) of the Labor Law, a plaintiff must have been engaged in "construction, demolition or excavation" work. Esposito v. New York City Indus. Dev. Agency, 1 NY3d 526, 528 (2003). Even viewing all the evidence in the light most favorable to the plaintiff, the Court finds that there are no triable issues of fact that could give rise to a conclusion that plaintiff was covered under any of these sections of the Labor Law.

Treacy's employer, Budd, was contracted to provide cross-town trucking and union labor for loading and unloading component pieces of scenic sets and display booths to be assembled and used at an event hosted at the hotel, Microsoft's Imagine Cup 2011. As an employee of Budd, Treacy's sole task in relation to the Imagine Cup event was to unload a truck at the hotel's loading dock. Once off the truck, a team of "pushers" from a separate union and non-party employer were tasked with transporting the materials from the loading dock into the hotel and into the ballroom on different floor by way of a freight elevator. Indeed, in accordance with local union practices, no Budd employee was required or even permitted to transport any materials beyond the loading dock. Neither Treacy nor his employer played any role in the assembly of the putative structures for the event, which was completed by an entirely different entity inside the ballroom at a location far removed from the loading dock.

Regardless of whether the portable booths and scenic sets constitute a "structure" for [*3]Labor Law construction purposes, Treacy's work activities were not covered by the Labor Law. Neither Budd nor Treacy was employed to perform construction, Treacy was not engaged in any of the protected or enumerated activities, nor was he working in a construction area. Rather, the general context of Treacy's work fell into a "separate phase easily distinguishable from other parts of the larger construction project." Prats v. Port Auth. of NY & N.J., 100 NY2d 878, 881 (2003). As Treacy's sole task of unloading trucks was distinct from any possible claimed construction, "there is a bright line separating the enumerated and nonenumerated work." Beehner v. Eckerd Corp., 3 NY3d 751, 752 (2004).

Indeed, Treacy's work activities were essentially no different than that of a UPS or FedEx driver dropping off packages at a loading dock containing component parts that would ultimately be used in construction. In sum, Treacy's work activities were simply too far removed from any alleged construction for the Labor Law to apply. Thus, the pushers, for example, who brought the crates in from the loading dock to the hotel and up to the ballroom, whereupon the purported construction occurred, might have been covered under the Labor Law, Treacy, who never left the loading dock, is not.

For all of the foregoing reasons, plaintiff was not a person covered by the Labor Law at the time of the accident. He was not employed in construction nor engaged in any of the enumerated activities as required to bring claims under Labor Law sections 200, 240(1) or 241(6). Accordingly, the moving defendants are granted summary judgment on all of plaintiff's Labor Law claims.

In addition to plaintiff's failure to raise triable issues of fact that he was covered under the Labor Law, plaintiff's negligence claims under Section 200 of the Labor Law, as well as his common law negligence claims, fail for additional reasons. Section 200 of the Labor Law is the codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. Cruz v. Toscano, 269 AD2d 122 (1st Dep't 2000). It is well settled that in order to find an owner or his agent (e.g., a general contractor) liable under Labor Law section 200 for defects or dangers arising from a subcontractor's methods or materials, it must be shown that the owner or agent exercised some supervisory control over the injury-producing work. See Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993); Fresco v. 157 E. 72nd St. Condo., 2 AD3d 326, 328 (1st Dep't 2003) (finding that the plaintiff submitted no evidence that the defendant had the right to control his work, or in fact controlled the injury-producing activity); Cruz, 269 AD2d at 123 (holding that the duty to provide a safe workplace was not breached where the plaintiff's injuries arose out of an alleged defect in his employer's tools and methods). The same standard applies to claims for common law negligence. Ross v. Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494 (1993) ("This rule [regarding liability for negligence] is an outgrowth of the basic common-law principle that 'an owner or general contractor [sh]ould not be held responsible for the negligent acts of others over whom [the owner or general contractor] had no direction or control.'" (second and third alterations in original) (quoting Allen v. Cloutier Constr. Corp., 44 NY2d 290, 297 (1978))).

Here, the surveillance video shows that it was the manner of the work that led to the injury. While there is conflicting testimony as to whether this plan was devised as a group or solely by George Holtzer, Budd's alleged foreman, it is uncontested that no person other than plaintiff's employer, Budd, gave plaintiff any instruction on how to unload the crates on the date of the accident. Thus, there is no genuine issue of material fact as to whether any of the moving defendants' employees exercised actual supervision or control over the worksite where plaintiff [*4]was injured to hold them liable for plaintiff's injuries. See Ross, 81 NY2d at 55-56. Further, a contractor's general supervisory control is insufficient to impute liability. See Sparendam v. Lehr Constr. Corp., 24 AD3d 388, 389 (1st Dep't 2005). Nor is the mere presence of the general contractor's personnel at the worksite sufficient to infer supervisory control. See In re New York City Asbestos Litig. (A.C. & S., Inc.), 25 AD3d 374 (1st Dep't 2006). For the foregoing reasons, the moving defendants are granted summary judgment on plaintiff's Labor Law section 200 and common law negligence claims.[FN1]

The cases cited by plaintiff in opposition to defendants' summary judgment motions do not require a different result. With the exception of Locicero v. Princeton Restoration, Inc., 25 AD3d 664 (2d Dep't 2006), there is no dispute in any of the cases cited by Treacy that the plaintiffs therein were construction workers and the injuries occurred at active construction sites. In Locicero, a plaintiff who was delivering rebar to the second floor of a building that was undergoing construction, at the direction of the contractor performing cement work, was injured. Labor Law 240(1) was found to apply in that case, in part, because unlike Treacy, the delivery task in Locicero required that the plaintiff actually enter an active construction site to deliver rebar that was to be immediately used in the ongoing cement operation. In the instant litigation, the delivery responsibilities fell on the pushers. As such, Treacy was not injured at an active construction site. In the end, given the nature and location of the work at the time of the accident, plaintiff was not within the class of workers the Labor Law was enacted to protect.

Microsoft's and Marriott's Cross-claims for Common Law Indemnification against Inspired

Microsoft and Marriott move for summary judgment on their cross-claim against Inspired for common law indemnification on the basis that this action arises out of the negligence of Inspired or its subcontractor, Budd. Conversely, Inspired moves for summary judgment dismissing Microsoft's and Marriott's cross-claim arguing that there are no genuine issues of material fact under which Inspired could be found negligent and, therefore, common law indemnification must be dismissed on that basis.

To the extent that either Microsoft or Marriott were potentially liable for the negligence of Inspired or Budd, there would be triable issues of fact as to whether Microsoft and Marriott were entitled to common law indemnification by Inspired. However, here, neither Microsoft nor Marriot are liable for any negligence. Accordingly, neither entity is entitled to indemnification as there is no potential triable issue of fact as to whether Budd was a subcontractor of Inspired based on the "pass-through" arrangement of the Amended Statement of Work/Schedule between Microsoft and Inspired (NYSCEF Doc. No. 255). However, because there is no negligence on behalf of either entity and no such issue of fact, Microsoft and Marriott's motion seeking summary judgment on its cross-claim for common law indemnification is denied as moot and Inspired's motion seeking dismissal of this cross-claim is granted.

Microsoft's Cross-claim for Contractual Indemnification Against Inspired

Microsoft moves for summary judgment on its cross-claim against Inspired for contractual indemnification based upon the Master Vendor Agreement between Microsoft and Inspired (NYSCEF Doc. No. 253) on the basis that this action arises out of the negligence of Inspired or its subcontractor, Budd. Conversely, Inspired moves for summary judgment [*5]dismissing Microsoft's cross-claim arguing, inter alia, that the contractual indemnification must be dismissed pursuant to the mandatory forum selection clause found in Section 12(b) of the Master Vendor Agreement which provides, in relevant part, that in the absence of federal jurisdiction, "the parties consent to the exclusive jurisdiction and venue in the Superior Court of King County, Washington." Id. (emphasis added).

Forum selection clauses are prima facie valid and shall not be set aside unless the opposing party can show "fraud or overreaching or where the enforcement of the clause would be so unreasonable and unjust as to make a trial in the selected forum 'so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.'" Shah v. Shah, 215 AD2d 287, 288 (1st Dep't 1995) (quoting British W. Indies Guar. Trust Co., Ltd. v. Banque Internationale A Luxembourg, 172 AD2d 234, 234 (1st Dep't 1991)).

While Microsoft concedes in its papers that the laws of Washington state govern the interpretation and enforcement of the contract, it does not address the forum selection clause. Accordingly, Microsoft "failed to show either that enforcement of the clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching." Koko Contracting, Inc. v. Cont'l Envtl. Asbestos Removal Corp., 272 AD2d 585, 586 (2d Dep't 2000). Notably, Microsoft maintains its headquarters in Washington state. Further, indemnification is generally a "separate substantive" claim independent from the underlying action. McDermott v. City of New York, 50 NY2d 211, 218 (1980). The Court also notes that despite the age of the underlying action, the statute of limitations for indemnification claims generally do not accrue until the party seeking its enforcement has paid the injured person. Id. Accordingly, the Court dismisses Microsoft's cross-claim for indemnification against Inspired because Microsoft sued in the wrong venue.

In accordance with the foregoing, it is hereby

ORDERED that Motion Sequence No. 010 is granted in its entirety and the complaint and all cross-claims are dismissed as against defendant Works in Progress, Inc.; and it is further,

ORDERED that the branch of Motion Sequence No. 011 seeking summary judgment on plaintiff's claims is granted to the extent that plaintiff's complaint and all cross-claims are dismissed as against defendants Microsoft Corp. and Marriott International, Inc.; and it is further,

ORDERED that the branch of Motion Sequence No. 011 seeking summary judgment on defendants Microsoft Corp. and Marriott International, Inc.'s cross-claim against defendant Inspired Event Productions, LLC for common law indemnification is denied; and it is further,

ORDERED that the branch of Motion Sequence No. 011 seeking summary judgment on defendant Microsoft Corp.'s cross-claim against defendant Inspired Event Productions, LLC for contractual indemnification is denied; and it is further,

ORDERED that Motion Sequence No. 012 is granted in its entirety and the complaint and all cross-claims are dismissed as against defendants Ports America, Inc. and Port Newark Container Terminal ("PNCT"); and it is further,

ORDERED that Motion Sequence No. 013 is granted in its entirety and the complaint and all cross-claims are dismissed as against defendant Inspired Event Productions, LLC; and it is further,

ORDERED that plaintiff's cross-motions for summary judgment, pursuant to CPLR 3212, on his Labor Law sections 240(1) and 241(6) claims are denied.

This constitutes the decision and order of this Court.

Dated: November 15, 2019

__________________________

Hon James E. d'Auguste, J.S.C. Footnotes

Footnote 1:As plaintiff did not address his common law negligence claims in his opposition papers, such claims are deemed abandoned and are dismissed on that basis as well.