Noeth v James E. Fitzgerald, Inc.

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Noeth v James E. Fitzgerald, Inc. 2020 NY Slip Op 35387(U) September 17, 2020 Supreme Court, Kings County Docket Number: Index No. 510893/2017 Judge: Reginald A. Boddie 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. 510893/2017 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 RECEIVED NYSCEF: 09/22/2020 ".. . ' At an IAS Trial Term, Part 95 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State of New York, on the 17th day of September 2020. PRES ENT: Honorable Reginald A. Boddie, JSC ---------- ·------------------------------------------------x JONATHAN C. NOETH, Index No. 510893/2017 Cal. No. 27, 28, 29 MS 7, 8, 9 Plaintiff, · Against DECISION AND ORDER JAMES E. FITZGERALD, INC and 1-10 BUSH TERMINAL OWNER, LP and ORCA . MECHANICAL INC., Defendants. ------------------------------------------------------------x Papers MS7 MS8 MS9 Numbered Docs.# 151-171, 289-290, 298, 350-351 Docs.# 184-213, 292-294, 296-297, 299-308, 319-321, 342-344 Docs.# 221-250, 287-288, 291, 309-318, 322-323, 339-341, 348-349 Upon the foregoing cited papers, the decision and order on the above-cited motions is as follows: Plaintiff commenced this action to recover for crush injuries to his ankle and foot he allegedly sustained on a jobsite located at 237 37th Street, Brooklyn, New York on December 5, 2015, when a 2000-pound dry cooler/HVAC unit fell from rigging as it was being hoisted. Plaintiff was employed by third-party defendant Skylift Contractor Corp. (Skylift) as a rigger at the time of the accident. The building, which was being renovated, was owned by 1-10 Bush Terminal Owner, LLP (Bush). Bush hired James E. Fitzgerald, Inc. (Fitzgerald) as the general contractor for the renovation. Fitzgerald subcontracted with Orea Mechanical Inc. (Orea), a mechanical contractor, to install HV AC units, and Orea contracted with Sky lift to hoist the HV AC units. 1 [* 1] 1 of 10 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 INDEX NO. 510893/2017 RECEIVED NYSCEF: 09/22/2020 f Plaintiff sought summary judgment (MS 7), pursuant to Labor Law § 240 ( 1), . holding defendants Fitzgerald, Bush, Skylift, and Orea strictly liable. Plaintiff argued that he was engaged in a covered activity under the statute at the time his accident occurred, which gave rise to a nondelegable duty entitling him to summary judgment. Plaintiff further argued that the rigging of the drycooler/HV AC was insufficient to hold the weight" and failed to comply with safe rigging practices to prevent the unit from falling. Orea opposed on the grounds that it was not the owner, the general contractor, or agent for the work the plaintiff was performing when the incident occurred. Orea argued it had no obligation to control the means, methods or equipment related to plaintiffs work, and it did not employ, supervise oi: instruct plaintiff. Orea argued it was retained by Fitzgerald merely to install the HV AC units and was not involved in the day-to-day management of the construction site at the subject premises. It argued that Fitzgerald purchased the HVAC units, Skylift's foreman was responsible for overseeing the lifting of the HVAC unit that fell and caused plaintiffs injuries, and Skylift provided the ·slings and cables to lift the HVAC units: Plaintiff argued in rebuttal that Orea had the authority to supervise or control the activity which brought about plaintiffs injury. Specifically, plaintiff argued Orea was hired by Fitzgerald to install the HVAC units, OCRA had sub-contracte~ the hoisting of the units onto the roof to Skylift, and OCRA's principle, Edward Kulic, "was present on the roof at the time of plaintiffs injury to oversee the operation and was waiting for the units to be hoisted onto the roof when the units fell on plaintiff." Labor Law§ 240 (1) provides that "[a]ll contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the_performance of such labor, 2 [* 2] 2 of 10 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 INDEX NO. 510893/2017 RECEIVED NYSCEF: 09/22/2020 scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give prope'i protection to a person so employed." The statute "imposes a nondelegable duty [on owners, contractors and their agents] to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (Carlton v City ofNew York, 161 AD3d 930,931 [2d Dept 2018], quoting Vasquez-Roldan v Two Little Red Hens, Ltd., 129 AD3d 828, 829 [2d Dept 2015]; see McCarthy v Turner Constr., Inc., 17 NY3d 369,374 [2011]). To hold Orea liable as contractors or agents for violations of Labor Law§ 240 (1 ), plaintiff must be a show that Orea had the authority to supervise and control the work (Johnsen v City of New York, 149 AD3d 822,822 [2d Dept 2017], citing see Marquez v L & M Dev. Partners, Inc., 141 AD3d 694, 696-697°[2d Dept 2016]; Van Blerkom v America Painting, LLC, 120 AD3d 660, 661 [2d Dept 2014]; Bakhtadze v Riddle, 56 AD3d 589, 590 [2d Dept 2008]). The determinative factor is whether the party had "the right to exercise control over the work, not whether it actually exercised that right" (Johnsen, 149 AD3d at 822, citing Williams v Dover Home Improvement, 276 AD2d 626, 626 [2d Dept 2000]; see Samaroo v Patmos Fifth Real Estate, Inc., 102 AD3d 944, 946 [2d Dept 2013]). Here, plaintiff argued Orea had the authority to s4pervise and control the activity which brought about plaintiffs accident, but presented no proof of Orca's activities or contractual agreement to substantiate such. Rather, the testimony of Ferdinand Medalla, Sky lift's foreperson, established that Sky lift was hired to hoist the dry coolers. Sky lift provided riggers and hoisting equipment, determined how the hoisting would be undertaken, oversaw the hoisting, and supervised its staff including plaintiff. Accordingly, plaintiff failed to establish its entitlement to summary judgment on its Labor Law§ 240 (1) claim against Orea. 3 [* 3] 3 of 10 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 INDEX NO. 510893/2017 RECEIVED NYSCEF: 09/22/2020 ~kylift also opposed plaintiff's motion, pursuant to Labor Law § 240 (1), for summary judgment against it. Skylift argued the rigging eyes on the dry cooler unit failed and not a safety device of the kind enumerated in Labor Law § 240, which included the shackles, cables/slings or crane used to hoist the dry cooler. "[T]he protections of Labor Law§ 240 (1) 'do not encompass any and all perils that may . be connected in some tangential way with the effects of gravity'" (Carlton, 161 AD3d at 931, quoting Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90,.97 [2015], quoting Ross v CurtisPalmer Hydro-Elec. Co., 81 NY2d 494,501 [1993]). Liability under Labor Law§ 240 (1) depends on whether the injured worker's "task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against" (Carltan, 161 AD3d at 931-932, citing Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]; see Eddy v John Hummel Custom Bldrs., Inc., 14.7 AD3d 16, 20 [2d Dept 2016]). "The single decisive question in determining whether Labor Law § 240 (1) is applicable is whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Carlton, 161 AD3d at 932, quoting Escobar v Safi, 150 AD3d 1081, 1083 [2d Dept 2017]; see Runner v New York Stock Exch., Inc., 13 NY3d 599,603 [2009]). Labor Law § 240 (1) "does not automatically apply simply because an object fell and injured a worker; 'a plaintiff must show that the object fell . . . because ofthe absence or inadequacy of a safety d~vice of the kind enumerated in the statute"' (Carlton, 161 AD3d at 932, quoting Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658,663 [2014], quoting Narducci v J Manhasset Bay Assoc., 96 NY2d 259,268 [2001] [emphasis added]; Maldonado v AMMM Props. Co., 107 AD3d 954,955 [2d Dept 2013]). "To .prevail on summary judgment in a section 240 (1) 'falling object' case, the injured worker must .demonstrate the existence of a hazard 4 [* 4] 4 of 10 INDEX NO. 510893/2017 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 RECEIVED NYSCEF: 09/22/2020 contemplated under that statute 'andthe failure to use, or the inadequacy of, a safety device of the kind enumerated therein"' (Fabrizi, 22 NY3d at 662,.quoting Narducci, 96 NY2d at 267 [2001], citing Ross, 81 NY2d at 501). Here, Sky lift raised a triable issue of fact. Mr. Medalla, on behalf of Sky lift, testified that two of four rigging eyes were shackled to cables that were connected to a crane to hoist the dry cooler. He further testified that this was done properly. It is well-settled that "[a]n expert opinion is beneficial where it would 'help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror"' (Green vlacovangelo, 184 AD3d 1198, 1201 [4th Dept 2020], quoting De Long v County of Erie, 60 NY2d 296, 307 .[1983]). Thi"s Court lacks the technical knowledge to determine whether the subject dry cooler was hoisted properly as Mr. Medalla averred or whether plaintiffs injuries result~d because of the absence or inadequacy of a safety device as plaintiff averred. Accordingly, plaintiffs motion for summary judgment, pursuant to Labor Law § 240 (1), against Skylift is denied. For the same reason, plaintiffs motion for summary judgment, pursuant to Labor Law§ 240 (1), against Bush and Fitzgerald is also denied. Ocra moved for . summary judgment (MS . 8) seeking dismissal of plaintiffs causes of action pursuant to Labor Law§§ 200, 240 (1) and 241 (6), and for contractual indemnification and breach of contact based on failure to procure insurance against Skylift. Fitzgerald opposed the motion on the grounds that Ocra is liable as a "statutory agent," arguing the evidence demonstrates Orea retained authority to supervise and control the work which caused the incident and plaintiffs alleged injuries. For the reasons previously stated, Ocra is granted summary judgment ori plaintiffs cause of action pursuant to Labor Law§ 240 (1). For the same reasons, Ocra is granted summary judgment on plaintiffs cause of action pursuant to Labor Law§ 241 (6) (see Johnsen, 5 [* 5] 5 of 10 INDEX NO. 510893/2017 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 RECEIVED NYSCEF: 09/22/2020 149 AD3d at 822, citing see Marquez v L & M Dev. Partners, Inc., 141 AD3d 694, 696-697 (2d Dept 2016]; Van Blerkom v America Painting, LLC, 120 AD3d 660, 661 [2d Dept 2014]; Bakhtadze v Riddle, 56 AD3d 589, 590 [2d Dept 2008]). Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work" (LaGiudice v Sleepy 's Inc., 67 AD3d 969, 971 (2d Dept 2009], citing see Ross, 81 NY2d 'at 501-502; Lombardi v Stout, 80 NY2d 290, 294-295 (1992]; Chowdhury v Rodriguez, 57 AD3d 121, 127-128 [2d Dept 2008]). Where, as here, a claim arises out of the manner in which work is performed, based on alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that they directed or controlled the means and methods of the performance of the work that caused injury (LaGiudice, 67 AD3d at 972, citing Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]; Dooley v Peerless Importers, Inc., 42 AD3d 199,204 [2d J?ept 2007]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993]). Liability for injuries arising from the manner in which work is performed arises under Labor Law § 200 when a defendant had the authority to exercise supervision and control over the work (Johnsen, 149 AD3d at 822, citing Marquez v L & M Dev. Partners, Inc., 141 AD3d at 698 [internal quotation marks omitted], q'!:loting Rojas v Schwartz, 74 AD3d 1046, 1046 [2d Dept 2010]). Here, movants averred and the record established that Skylift, and not movants, directed and controlled the means and methods of the work that caused plaintiffs injuries. Having met their prima facie burden, and without opposition to. this branch of the motion, Orea is granted summary judgment on plaintiffs Labor Law§ 200 claim against it (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 (1985]; Zuckerman v City ofNew York, 49 NY2d 557,562 (1980]). ' 6 [* 6] 6 of 10 INDEX NO. 510893/2017 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 RECEIVED NYSCEF: 09/22/2020 J ' Skylift opposed Orca's motion for summary judgment seeking contractual indemnification and breach of contract against it.. Ocra proffered an agreement executed on July 28, 2014, wherein Skylift agreed to indemnify and hold Ocra harmless. Skylift averred this agreement applied to Edward Kulic, Orca's owner, individually and not to . Orea because Mr. Kulic placed his signature on the line that indicated, "Contractor Name." The Court finds this argument unavailing and insufficient to raise a triable issue. The language of the agreement clearly indicated the parties' intention Skylift would indemnify Orea and add it as an additional insured on its policy. Having failed to raise a triable issue or provide proof of insurance, Orea is granted summary judgment on its claims for contractual indemnification and breach of contract again~t Sky lift. Bush and Fitzgerald moved for dismissal (MS 9) of plaintiffs Labor Law § 200 and comnion law negljgence claims against them, and summary judgment on its claims for contractual indemnity against Orea and Sky lift, deeming their claims against Sky lift resolved pursuant to CPLR 3126 (1 ), and precluding Skylift, pursuant to CPLR 3126 (2), from producing evidence with regard to issue of contractual indemnity. Orea opposed the portion of the motion seeking summary judgment against it. 'To the extent the complaint against Orea was dismissed on summary judgment, Fitzgerald's motion for summary judgment on its contractual claims _against Orea is denied. Movants averred they are entitled to summary judgment on plaintiffs Labor Law § 200 because they neither exercised the requisite authority to supervise or control the manner in which plaintiffs work was performed nor provided the materials used by Sky lift when the accident occurred. Where, as here, a claim arises out of the manner in which work is . performed, based on alleged defects or dangers in the methods or materials of the work, recovery 7 [* 7] 7 of 10 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 J INDEX NO. 510893/2017 RECEIVED NYSCEF: 09/22/2020 I against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that they directed or controlled the means and methods of the performance of the work that caused injury (LaGiudice, 67. AD3d at 972, citing Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]; Dooley v Peerless Importers, Inc., 42 AD3d 199,204 [2d Dept 2007]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). flere, movants averred and the record established that Skylift, and not movants, directed and controlled the means and methods of the work that caused plaintiffs injuries or had the authority to exercise supervision and control over the work. Having met their prima facie burden, and without opposition to this branch of their motion, Bush and Fitzgerald are granted summary judgment on plaintiffs Labor Law § 200 and common law negligence claims against them (see Winegrad v New York Univ. Med Ctr:, 64 NY2d 851,853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Johnsen, 149 AD3d at 822, citing Marquez v L & M Dev. Partners, Inc., 141 AD3d at 698 [internal quotation marks omitted], quoting Rojas v Schwartz, 14 AD3d 1046, 1046 [2d Dept 2010]). Bush and Fitzgerald also sought summary judgment on their claims for contractual indemnity against Skylift, and to deem their claims against Skylift resolved pursuant to CPLR 3126 (1), and preclude Skylift, pursuant to CPLR 3126 (2), rrom producing evidence with.regard to the issue of contractual indemnity. Movants aver the July 2014 agreement between Orea and Skylift obligated Skylift to · indemnify and hold them harmless. The ·agreement indicated Sky lift agreed to indemnify and hold harmless the "Owner, and the Contractor and all of their agents and employees." The contractor was identified as Orea. Sky lift opposed. It proffered the affidavits of Francis Crowley and Melissa Calabrese . which denied that it received, executed and returned the July 2014 agreement and challenged the 8 [* 8] 8 of 10 INDEX NO. 510893/2017 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 RECEIVED NYSCEF: 09/22/2020 veracity of the signature executing the agreement. Ms. Calabrese also averred she was not aware of the agreement until after the accident. Mr. Crowley, admittedly, had little familiarity with Orea in 2014. Skylift also averred Frank Allecia, Skylift's owner, was the only person who was authorized to and did negotiate and sign contract documents on behalf of Sky lift. Mr. Allecia failed to appear for examination under oath and was precluded by the order of the Honorable Lizette Colon on February 3, 2020, for failing to comply with court-ordered discovery. Reargument of Justice Colon's February 3 order was denied on August 4, 2020, and "Skylift [was] precluded from offering evidence, affidavit and/or testimony of Frank Allecia o·n motion or at trial." To the extent the affidavits of Mr. Crawley and Ms. Calabrese assert testimony Mr. Allecia is precluded from proffering directly, Skylift may not circumvent Justice Colon's preclusion order (see CPLR 3126). Nevertheless, upon the plain reading of the contract, and movants having failed to show they are agents of Orea, this branch of the motion is denied (see Remet Corp v Pyne, 26 NY3d 58, 63 [2015], citing see generally Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]) and the sufficiency of Sky lift's opposition need not be considered (see Winegrad, 64 NY2d at 853). As to the branch of the motion to deem movants' claims against Skylift resolved pursuant to CPLR 3126 ( 1), and preclude Sky lift, pursuant to CPLR 3126 (2), from producing evidence with regard to the issue of contractual indemnity, the motion is denied without prejudice to seeking relief in the Discovery Part or before the presiding trial judge. It is, therefore, ordered: Plaintiffs motion for summary judgment (MS 7) is denied. Orca's motion for summary judgment (MS 8) is granted. 9 [* 9] 9 of 10 INDEX NO. 510893/2017 FILED: KINGS COUNTY CLERK 09/22/2020 04:38 PM NYSCEF DOC. NO. 352 RECEIVED NYSCEF: 09/22/2020 • l Bush and Fitzgerald's motion for summary judgment (MS 9) is granted to the extent plaintiffs claims, pursuant to Labor Law § 200 and common law negligence, against it are dismissed; the remainder of the motion is denied. Honorable Reginald A. Boddie Justice, Supreme Court 10 [* 10] 10 of 10

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