Opinion
No. 33051/08.
2012-05-9
Hugh ASSEVERO, Plaintiff, v. HAMILTON & CHURCH PROPERTIES, LLC, Defendant. Hamilton & Church Properties, LLC, Third–PartyPlaintiff -against-Castle Construction Group, Third–PartyDefendant. Hamilton & Church Properties, LLC, Second/Third–PartyPlaintiff, Scottsdale Insurance Company, Second/Third–PartyDefendant.
Edelman & Edelman, New York, for Plaintiff. Russo & Toner, LLP, New York, for Defendant.
Edelman & Edelman, New York, for Plaintiff. Russo & Toner, LLP, New York, for Defendant.
DAVID SCHMIDT, J.
+--------------------------------------------------------------------------------------------+ ¦The following papers numbered 1 to 21 read on these motions: ¦Papers Numbered ¦ +--------------------------------------------------------------+-----------------------------¦ ¦Notice of Motion/Order to Show Cause/ Petition/Cross Motion ¦1–3, 4–6, 7–8, 9–10 ¦ ¦and Affidavits (Affirmations) Annexed ¦ ¦ +--------------------------------------------------------------+-----------------------------¦ ¦Opposing Affidavits (Affirmations) ¦11, 12–13, 14, 15, 16 ¦ +--------------------------------------------------------------+-----------------------------¦ ¦Reply Affidavits (Affirmations) ¦17, 18, 19, 20, 21 ¦ +--------------------------------------------------------------------------------------------+
Upon the foregoing papers, plaintiff Hugh Assevero (plaintiff) moves, pursuant to CPLR 3212, for partial summary judgment against defendant Hamilton & Church Properties, Inc. (H & C) on his Labor Law § 240(1) cause of action, and for an order granting him an immediate trial on damages. H & C moves for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's complaint insofar as asserted against it, and for summary judgment against Castle Construction Corp. (Castle) on its claims for contractual and common-law indemnification, including legal fees and costs, and for breach of contract for failure to procure insurance. Castle moves, pursuant to CPLR 3212, to dismiss plaintiff's complaint insofar as asserted against it.
Castle separately cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party action.
This motion is denied as moot as plaintiff did not commence this action against Castle.
Overview
This action arises out of an accident involving plaintiff Hugh Assevero on July 9, 2007, when he fell three stories from an extension ladder during the gut renovation of a brownstone/townhouse located at 230 Elizabeth Street in Manhattan. Prior to the accident, H & C, whose sole member is Adam Woodward, hired Integrity, plaintiff's employer, to serve as general contractor for the project. Subsequently, Integrity hired subcontractor Castle to provide drywall and rough carpentry services for the project. Plaintiff served as Integrity's site supervisor for the project.
Facts
Mr. Woodward testified that he formed H & C, a limited liability corporation, in 2004 to purchase the brownstone. He was a magazine photography editor with no prior construction or real estate management experience, and the brownstone was the only property he owned.
At the time of purchase, the premises consisted of a retail shop on the ground floor, apartments on the second, third, and fourth floors, and an interior common staircase. The gut renovation entailed removal and replacement of the entire interior premises, including flooring, subflooring, the interior staircase, the addition of a fifth floor, and the creation of two separate duplex apartments, one on the second and third floors and the other on the fourth and fifth floors. Mr. Woodward planned to rent the first floor as commercial space, to rent the duplex apartment on the second and third floors to a residential tenant, and to live in the other duplex apartment with his family. He said that he purchased the property “as a home,” and although he “incidentally,” ha[d] income from it,” that was not why he purchased it.
Mr. Woodward changed the premises from three to two apartments because if it had remained a three-story apartment dwelling with a commercial ground floor space, he would have been required by the New York City Department of Buildings (DOB) to install, among other things, a commercial elevator, a sprinkler system, and a fire escape. He did not have to install these appurtenances after renovation because the DOB classified the premises as a single-family or two-family dwelling “with a store zoning.”
Mr. Woodward hired an architect to manage the project. The architect, with Mr. Woodward's approval, hired Integrity as the general contractor, and Integrity hired subcontractors at its own discretion, without input from Mr. Woodward.
Mr. Duffy, the owner of Castle, testified that Castle was responsible for removing the existing floor joists, replacing them with new floor joists, and installing sub-flooring.
Castle provided its workers with one 20–foot extension ladder with two sections to access the first two floors and A-frame ladders to access the third and fourth floors. When in use, the extension ladder was tied to the floor joists with a rope so that it could not slip or move from side to side.
Mr. Duffy testified that installing new sub-flooring meant installing new floor joists with one layer of plywood.
Plaintiff testified that he was the site supervisor for Integrity. He was responsible for daily management of activities at the premises, including “detailing work assignments according to drawings and requirements by the architect and engineer,” giving these work assignments to the subcontractors, supervising Integrity laborers, and exercising general housekeeping.
Plaintiff was also responsible for supervising site safety every day, including ensuring that all workers had safe access to the upper floors, and worked safely with ladders and around floor openings. Plaintiff testified that he was the only person on the site with the authority to stop workers from performing work in an unsafe manner. There were no safety meetings at the premises, but had any been held, either plaintiff or Mr. Roque Diaz, Integrity's project manager, would have been responsible for holding them. While working at the project, plaintiff saw a young man at the site approximately five times whom he believed worked for H & C. This person discussed the history of the neighborhood and retrieving artifacts from the backyard of the building, and did not discuss equipment at the premises or safety measures taken at the job site.
Plaintiff testified that the project entailed the gut renovation of the building's four floors and its basement, as well as the addition of a fifth floor incorporating the roof. When plaintiff began working on the project, he was aware that the interior stairs and the majority of the flooring had been demolished. After the remaining portion of the existing floor was demolished, the stairs were to be replaced with prefabricated steel frame interior stairs. As of the date of plaintiff's accident, the reconstruction of the subfloor was underway.
On the date of the accident, Castle had not completed the flooring. The joists (or beams) and planking had been replaced, but only to the point where the interior stairs, which had been completely demolished, were to be installed. The reinstalled area of flooring covered approximately the front one-third of the building on each story, and the remaining two-thirds of the space in the back of the building where the interior staircase was to be installed was empty. On every floor, a two-by-four railing or barricade with a kick plate was placed at the edge of the area where the flooring had been removed to prevent workers, materials, and equipment from falling into the empty space. Plaintiff and Integrity decided not to cover the areas beyond the barricades with plywood because the railing on every floor would prevent anything from falling over or rolling underneath these areas.
Just prior to the accident, plaintiff used an A-frame ladder to shimmy through a small opening between two beams in the subfloor to get from the first to the second floor. Plaintiff then used Castle's extension ladder, in a folded position, to go from the second to third floor.
He explained that he rested the feet or “legs” of the lower half of the extension ladder approximately three feet from the barricade edge on the second floor, and then placed the top of the ladder through a space between the second and third floors by leaning it against a joist on the third floor. He then climbed the ladder to the third floor, stepped off the ladder and onto the third floor, and checked the leveling for the fourth floor joists. Other than the feet of the ladder, there was nothing securing the ladder to the second floor immediately prior to his accident. After completing his inspection, while holding the folded extension ladder with one or both hands, plaintiff climbed down three or four rungs. He then sensed that the bottom of the ladder moved or “gave out,” meaning, “[t]he bottom treads of the ladder slipped out,” and he fell over the barricades, down through the empty, unfloored space in the back of the building, to the concrete basement level.
Plaintiff testified that he did not recall bringing the extension ladder to the second floor.
Plaintiff did not remember using the extension ladder at the site in this way before his accident, nor had he seen others using it this way. He did not tie down the extension ladder, or do anything other than rest it on a joist. Plaintiff said there were no other ladders available at the site that could have been used to access the third floor. He explained that although the extension ladder was equipped with safety latches, they were only usable when the ladder was fully extended (i.e. not folded). Plaintiff recalled using the extension ladder in the past on a daily or semi-daily basis, and that he had retrieved it from somewhere on the construction site.
Plaintiff further testified that he could use the ladder in this manner safely; that the manner in which he used the ladder was the only safe way to do so; that he would not have used the ladder to climb to the third floor had he thought it was unsafe; and that it would have been unsafe to use both sections of the extension ladder to climb to the third floor. Plaintiff did not observe anything wrong with the ladder, and no one warned him against using it. Plaintiff had previously made a “cursory” examination of the feet of the ladder, but he did not check the ladder's feet on the day of the accident. On the other hand, he had never had a problem using the extension ladder.
Plaintiff testified that there was “probably” rope or other materials at the site that he could have used to secure the top end of the ladder, but did not do so, and that nothing prevented him from securing the ladder to the floor joists, securing the feet of the ladder to the floor, or asking a coworker to hold the ladder.
Plaintiff was aware from the beginning of the project that he would be supervising workers where there were floor openings and no interior stairs between floors. He also said that before he began working at the site, his supervisor from Integrity, Mr. Diaz, decided that the workers would use ladders to move between floors during the time the building had no stairs and incomplete subfloors. According to plaintiff, he would have built temporary stairs until the steel stairs were installed had Integrity permitted it, but did not ask any of his supervisors at Integrity to build them.
In any event, plaintiff's only concern about using ladders was that the A-frame ladders at the site were not tall enough and that there were too few of them. He was concerned that the ladders would be moved while workers were on the upper floors, leaving them no way to get down. Plaintiff asked Mr. Diaz at least three times that Integrity supply taller A-frame ladders, but Mr. Diaz refused his requests. Mr. Diaz suggested that plaintiff use staging scaffold, which plaintiff rejected as impractical because the staging he inspected at another site was unusable and because it would have impeded with the construction of the interior stairs.
Mr. Diaz testified that as project manager, his responsibilities included planning and coordinating construction projects, ensuring trades were present when needed; backing up the site supervisor with respect to quality control and site safety, and instructing the site supervisors to be aware of anything on the site that could be dangerous to anyone working or visiting there. He relied upon his site supervisors for quality control, to ensure that the site was safe, and to make sure the trades were properly set up, understood the nature of their work, and worked safely.
Before plaintiff began work at the site, Mr. Diaz and plaintiff discussed site safety at the project, which included how plaintiff should keep workers safe. A site supervisor also had to ensure that workers and visitors were protected from falling through openings and that barricades were erected to prevent these types of falls. Mr. Diaz and plaintiff discussed how laborers would gain access to upper floors without interior stairs, and agreed that they would use ladders to access staggered openings in the floor created as joists were removed and replaced.Plaintiff was responsible for making sure that the laborers had safe access to the upper floors, that the openings in the floors were staggered correctly, and for advising Mr. Diaz if the ladder method used to access upper floors was unsafe.
As to plaintiff's concern regarding the lack of sufficient ladders, Mr. Diaz felt he did not need to provide additional ladders because he believed Castle would leave its ladders on the site after it left. He also said that after enough floor joists were installed on each floor, a scaffold could be used as a temporary stairway to access the upper floors. Mr. Diaz and Mr. Mosomillo discussed using temporary stairs during construction but decided it was not necessary before the installation of the subflooring.
Following the accident, plaintiff commenced this action against H & C alleging violations of Labor Law §§ 240(1), 241(6), 200, as well as common-law negligence arising his fall from the ladder. H & C joined issued generally denying the allegations of the complaint. H & C then commenced a third-party action against Castle seeking contractual and common-law indemnification, contribution, and damages for breach of contract for failure to procure insurance. Castle joined issue, generally denying the allegations of the complaint, and asserted various affirmative defenses. H & C then commenced a second/third-party action against Castle's insurance carrier, Scottsdale Insurance Company, seeking a declaration that Scottsdale is obligated to defend and indemnify it. After discovery was complete, the parties made the instant motions for summary judgment.
Labor Law § 240(1)H & C moves for summary judgment dismissing plaintiff's complaint in its entirety. In support of its motion to dismiss plaintiff's Labor Law §§ 240(1) and 241(6) causes of action, H & C argues that the subject property falls within the homeowner's exemption contained in these statutes because it is an owner-occupied two-family dwelling, which is not used solely for commercial purposes. In support of his own motion for partial summary judgment, plaintiff argues that defendant violated Labor Law § 240(1) because of its failure to provide any safety devices when he was exposed to two gravity-related risks: the first when he was elevated on the ladder which moved, and the second when he fell from the third floor to the basement. In plaintiff's opposition to defendant's motion, plaintiff argues that defendant's purported ties to a real estate company, as well as the renovation or “re-establishment” of the ground floor commercial space, proves that the renovation was not limited to the mere creation of a two-family dwelling with a commercial store, and raises a question of fact as to whether the property was meant to be predominantly income-producing, precluding defendant from entitlement to the exemption.
“Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure' “ (Umanzor v. Charles Hofer Painting & Wallpapering, Inc., 48 AD3d 552, 552 [2d Dept 2008], lv denied10 NY3d 714 [2008], quoting Jock v. Fien, 80 N.Y.2d 965, 967–968 [1992];see also Putnam v. Karaco Indus. Corp., 253 A.D.2d 457, 458 [2d Dept 1998] ). “In 1980, the Legislature amended Labor Law §§ 240 and 241 to exempt owners of one and two-family dwellings who contract for but do not direct or control the work' from absolute liability imposed by these statutory provisions' “ (Bartoo v. Buell, 87 N.Y.2d 362, 367 [1996], quoting Labor Law §§ 240 and 241; see also Cannon v. Putnam, 76 N.Y.2d 644 [1990];Putnam, 253 A.D.2d at 458). By amending these statutes to include the homeowner's exemption, the Legislature intended to “shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law” (Bartoo, 87 N.Y.2d at 362), and evidenced its determination that “the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection” ( id., citing Cannon v. Putnam, 76 N.Y.2d 644, 649 [1990] ). In this regard, the Law Revision Commission stated that “an exemption for one and two family dwelling owners is needed” because “the theory of dominance of the owner over the subcontractor or worker breaks down at this level' “ (Bartoo, 87 N.Y.2d at 362,citing Recommendation of N.Y. Law Rev Commn, reprinted in 1980 McKinney's Session Laws of NY, at 1659). In short, “[t]he exception was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by section 240(1)” (Lombardi, 80 N.Y.2d at 290, 296 [1992];see also Hook v. Quattrociocchi, 231 A.D.2d 882, 883 [4th Dept 1996] ).
“To whom the exemption should be afforded has been the subject of much interpretation” (Rasul v. Meakens, 23 Misc.3d 1113A, 2009 N.Y. Slip Op 50728 [U], *2 [2009] ). In this regard, the statutes do not address “exactly who the Legislature intended to protect with the exemption” ( id.). For example, even the Court of Appeals has noted that the Legislature has not defined the terms “one or two family dwellings” (Van Amerogen v. Donnini, 78 N.Y.2d 880, 880 [1991] ). Thus, “[c]ourts have considered different factors in determining which homeowner is entitled to the exemption, such as the nature and purpose of the work being contracted for, the commercial versus residential use of the property, and whether the homeowner resides in the premises in question” (Rasul, 2009 N.Y. Slip Op 50728[U], *2). As Rasul aptly notes, “[p]art of the confusion stems from the use of the phrase commercial use' to describe renting out residential units to tenants,” that is, “while the tenant's use is residential, the owner is using it commercially in the sense that it produces income” ( id.).
Despite these considerations, case law interpreting the exemption holds that “[a]t one end of the spectrum, where it is clear that the property is used solely as a one-or two-family dwelling, and the homeowner does not direct or control the work, the exemption will apply” (Putnam, 253 A.D.2d at 458). “At the other end of the spectrum, where a one-or two-family dwelling is used entirely and solely for commercial purposes (including use as a rental property), the owners cannot benefit from the dwelling exemption” ( id., citing Van Amerogen, 78 N.Y.2d at 882;see also Crossett v. Wing Farm, Inc., 79 AD3d 1334, 1335 [3d Dept 2010]; Rasul, 2009 N.Y. Slip Op 50728 [U], *4).
Where, as here, the situation “fall[s] somewhere between these two extremes,” (Putnam, 253 A.D.2d at 458), namely where the one-or two-family dwelling is used for both residential and commercial purposes ( Bartoo, 87 N.Y.2d at 638)-the “case[s] turn[ ] on the site and purpose of the work” (Khela v. Neiger, 85 N.Y.2d 333, 337 [1995];see also Umanzor, 48 AD3d at 553;Ramirez v. Begum, 35 AD3d 578, 578 [2d Dept 2006], lv denied8 NY3d 809 [2007];Johnson v. Fox, 268 A.D.2d 782, 784 [3d Dept 2000] ). In Van Amerogen—a case involving a single-family dwelling used solely for rental/commercial purposes—the Court of Appeals held that the exemption from strict liability for one-and two-family homeowner's is an exception to the clear legislative intent of Labor Law §§ 240 and 241, which should be extended “only so far as the language of the exception fairly warrants,” with “doubts ... resolved in favor of the general provision” (Van Amerogen, 78 N.Y.2d at 880).
However, the Court of Appeals has also held that in “mixed-use” cases “the existence of both residential and commercial usages on a property does not automatically disqualify a dwelling owner from invoking the exemption” (Cannon, 76 N.Y.2d at 644;see also Johnson, 268 A.D.2d at 783–784;Ramirez, 35 AD3d at 578). In this regard, in Bartoo, the Court of Appeals held that “[u]nlike the situation where a one-or two-family dwelling serves only commercial purposes, in which case the dwelling is more accurately considered [a] commercial enterprise[ ]' ... a residence that houses a business may nevertheless retain its character as a home” (Bartoo, 87 N.Y.2d at 368, quoting Lombardi, 80 N.Y.2d at 297). Thus, Bartoo concluded that “when an owner of a one-or two-family dwelling contracts for work that directly relates to the residential use of the home, even if the work also serves a commercial purpose, that owner is shielded by the homeowner exemption from the absolute liability of Labor Law §§ 240 and 241” (Bartoo, 87 N.Y.2d at 368). Thus, if, for example, an owner lives in one of the residential units and rents out the other in a two-family dwelling, courts have generally applied the exemption (Chowdhury v. Rodriguez, 57 AD3d 121 [2d Dept 2008]; Ramirez, 35 A.D.2d 578;see also Castro v. Mamaes, 51 AD3d 522 [1st Dept 2008]; Small v. Gutleber, 299 A.D.2d 536, 537 [2d Dept 2002], lv denied2 NY3d 702 [2004];Facteau v. Allen, 293 A.D.2d 847, 847–848 [3d Dept 2002]; Ortiz v. Pena, 227 A.D.2d 297 [1st Dept 1996] ). The exemption has also been applied where the property is used primarily for residential purposes, but is also used for a commercial purpose, such as a home office, which is incidental or ancillary to the property's residential use ( see e.g. DeSabato v. 674 Carroll St. Corp., 55 AD3d 656, 658 [2d Dept, 2008]; Umanzor, 48 AD3d at 553;Moran v. Janowski, 276 A.D.2d 605, 606 [2d Dept 2000]; Telfer v. Gunnison Lakeshore Orchards, Inc., 245 A.D.2d 620, 621 [3d Dept 1997], lv denied92 N.Y.2d 803 [1998];Putman, 253 A.D.2d at 458–459;Vliet v. Alweis, 227 A.D.2d 853, 854 [3d Dept 1996]; Valencia v. Calero, 2003 N.Y. Slip Op 50568[U], *2 [App Term, 2003] ). Moreover, “[t]he site and purpose' employed in mixed-use cases is “employed on the basis of the homeowner's intentions at the time of the injury underlying the action and not their hopes for the future” (Lenda v. Breeze Concrete Corp., 73 AD3d 987, 989 [2d Dept 2010], quoting Allen v.. Fiori, 277 A.D.2d 674, 674–675 [3d Dept 2000] ).
Finally, “corporate ownership of a property, in and of itself, does not preclude application of the homeowner exception to sections 240 and 241(6)” (Lai–Hor Ng Yiu v. Crevatas, 2011 N.Y. Slip Op 21272, * 14–15 [Sup Ct, Kings County 2011], citing Baez v. Cow Bay Constr., 303 A.D.2d 528, 528–529 [2d Dept 2003], lv denied2 NY3d 701 [2004] [defendant corporation entitled to exemption where the project upon which the injured plaintiff was working involved construction of two single-family houses that the sole shareholder of defendant and his family planned to use for residential purposes]; Telfer, 245 A.D.2d at 621 [defendant apple orchard corporation, wherein husband and wife homeowners were president and secretary/treasurer of defendant, respectively, was entitled to homeowner's exemption because single-family home, which had been renovated and was located on orchard, was not used solely to advance commercial enterprise, and extent residence used for commercial purposes was de minimis] [Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., 77 AD3d 879 [2d Dept 2010], lv denied16 NY3d 704 [2011] [defendant corporation, United Cerebral Palsy Association, entitled to exemption where the building where plaintiff laborer was injured was a single-family dwelling used solely as a residence for six disabled individuals who lived together and functioned as a family]; Uddin v. Three Bros. Constr. Corp., 33 AD3d 691, 692–693 [2d Dept 2006] [Church entitled to exemption because it established that the building where the plaintiff was injured was a single-family dwelling used solely as a residence for its pastor and his wife, where no church business was conducted] ).
Moreover, even where a corporate defendant engages in other business dealings aside from the purchase and/or ownership of its one-or two-family dwelling, that defendant is still entitled to the exemption if the work from which the injury arose relates to the residential use of a home ( see Outwater v. Ballister, 253 A.D.2d 902, 904 [3d Dept 1998]; Fernez v. Kellogg, 2 AD3d 397 [2d Dept 2003]; cf. Johnson, 268 A.D.2d at 784).
Here, just as in Rasul, this case falls somewhere between the situation where the entire building is rented out and where the owner resides in one of the units. Under the facts presented, and in light of the case law set forth above, the court finds that defendant has made a prima facie showing that the building constitutes a two-family dwelling, and that defendant did not direct or control the renovation. Further, although the rental of one of the apartments—as well as the ground floor—makes this case a close one, defendant has also demonstrated that the renovation of the building was predominantly related to its residential use, entitling defendant to the exemption.
As stated, defendant has satisfied the threshold issue of whether the property qualifies as a one or two-family dwelling (Yerdon v. Lyon, 259 A.D.2d 864, 865 [3d Dept 1999], lv denied94 N.Y.2d 754 [1999] ). In this regard, Mr. Woodward, the sole shareholder of defendant, testified that the property was being converted from a three-family multiple dwelling into two duplex apartments; that he intended to live in one of the apartments with his family and to rent the other duplex apartment as a residence, which in fact he did; and that because he changed the property from three to two apartments, when the renovation was complete, the DOB classified the property as a single or two-family residence with a “store zoning.” Further, Mr. Woodward states in his affidavit, and plaintiff does not dispute, that the DOB issued a new Certificate of Occupancy for the property effective June 20, 2011 (annexed to H & C's motion),
indicating that the building was a “J–3” Occupancy Group classification under the 1968 Building Code; a classification reserved for buildings designated as one or two-family dwellings. Thus, while the building contained a ground floor commercial space, it was structurally—or stated otherwise, principally—a two-family dwelling because it contained two residential duplex apartments ( see Hosler v. N. Eagle Bevs., Inc., 15 AD3d 925, 926 [4th Dept 2005], quoting Rivera v. Revzin, 163 A.D.2d 896, 897, 559 N.Y.S.2d 74 [4th Dept 1990], lv denied79 N.Y.2d 760 [1992] [“Although defendant's brother paid rent to defendant, the house was structurally a single-family residence,' and defendant's brother did not have separate living quarters' ... [t]hus “defendant's house constitutes a single-family dwelling, and the apartment over the attached garage renders the house a two-family dwelling”]; Small, 299 A.D.2d at 537 [“Although the defendants' building is classified as a multiple dwelling, the defendants occupy the entire space except for a portion of one floor which they rent to a tenant, and contracted to have various work performed so that the building ultimately could be reclassified as a two-family dwelling”]; Yerdon, 259 A.D.2d at 865 [“(T)he property was a two-family dwelling at the time it was purchased by defendants ... [t]hroughout the period of renovation (which also created two bed and breakfast guestrooms), the house was not lived in by more than two tenants and, at the time of the accident, only the second-floor tenant was residing in the house,” qualifying it, “at the time of plaintiff's accident,” as “principally a one or two-family dwelling.”]; see also Sheehan v.. Gong, 2 AD3d 166, 169 [1st Dept 2003] [at the time of the accident, there were no renters in the building, the only people living there were defendant's parents on the first floor and defendants and their children on the second floor, and the work performed by plaintiff when he was injured was part of the process of converting the two second-floor apartments into one and thus transforming the building from a three- to a two-family dwelling] ).
At Exhibit N.
Notably, the court has not found any case law holding that a brownstone/townhouse with a commercial ground floor where the owner lives in one apartment, and rents the second apartment and the commercial space, is not classified as a two-family dwelling. In fact, plaintiff concedes that absent Mr. Woodward's purported ties to a real estate company, defendant corporation would be considered “the mere creation of an [sic] unsophisticated Adam Woodward, limited to the purchase of 230 Elizabeth Street to be used as a two family dwelling with a commercial store.”
Plaintiff's “Affirmation in Opposition to the motion for Summary Judgment filed by Defendant Hamilton & Church Properties, LLC,” ¶ 6.
In addition, at least one case decided before the more recent “mixed-use” Court of Appeals decisions found that while the Legislature failed to define the phrase “one or two-family dwelling,” that phrase must be given its “ordinary and accepted meaning” (Zahn v. Pauker, 107 A.D.2d 118, 120 [3d Dept 1985], quoting McKinney's Cons Laws of NY, Book 1, Statutes, § 94). In Zahn, the court noted that the term “dwelling” and “dwelling house” were defined, respectively, as “a building or construction used for residence” and “a house * * * that is occupied as a residence in distinction from a store, office, or other building” ( id., citing Webster's Third New International Dictionary 706 [unabridged 1981] ). The court further noted that dwelling was defined as “[the] house or other structure in which a person or persons live; a residence; abode; habitation; the apartment * * * occupied by a family as a place of residence' “ ( id., citing Black's Law Dictionary 454 [5th ed 1979] ).
While the court ultimately determined that a suite of dentist offices in the basement of the homeowner's residence did not constitute a two-family dwelling, the subject property here consists of a building used primarily as a residence, namely a structure in which a residential tenant and a family live in two separate duplex apartments, and thus is distinguisable from the facts of Zahn.
Further, although Zahn noted that the Second Department in another decision ( Matter of Present v. McGoldrick, 279 App.Div. 1010, 1011 [1952] ), had construed the term “one of two-family house” to mean a house “exclusively used for residential purposes,” that determination occurred in the context of eviction proceedings applying New York Residential Rent Law § 5(2)(a). Thus, although Matter of Present involved a building with one apartment (on two floors) and a ground floor business, it did not implicate the considerations present under the homeowner's exemption. Finally on this issue, the court notes that had the Legislature intended to exclude this class of primarily residential brownstones/townhouses from entitlement to the exemption, it would have done so in the statute.
Hossain (92 AD3d 722, 723), also noted that Labor Law § 240(1) does not specifically define “family,” for the purposes of the homeowner's exemption. In this regard, it pointed out that Multiple Dwelling Law § 4(5) describes, in pertinent part, a “family” as “two or more persons occupying a dwelling, living together and maintaining a common household.” It held that the homeowner's exemption was not applicable because two families living in two of the three apartments in the subject property had failed to demonstrate that “the related occupants of these two separate apartments were living together and maintaining a common household as a single family” ( id. at 724). Thus, the holding cannot be understood to mean that an apartment building containing two apartments cannot be classified as a two-family dwelling because one of the residents living in one of the apartments is a single tenant ( see e.g Facteau, 293 A.D.2d 847;Ramirez, 35 AD3d 578).
As to the second prong of the statute, defendant established, and the record reveals, that the work for which it contracted related predominately to the residential use of the property, namely the complete renovation and creation of two duplex apartments, with less extensive work performed on the ground floor. Specifically, Mr. Woodward testified that he intended to keep the first floor commercial space at it was, and that when construction was complete, the retail tenant on the first floor would “do a cosmetic build-out .” Thus, defendant established that it is entitled to the exemption ( see Ramirez, 35 AD3d at 578–579 [“Use of a portion of a homeowner's premises for commercial purposes—as here, where part of the two-family dwelling was rented—does not automatically cause the homeowner to lose the protection of the exemption under the statute ... the replacement of the siding of the exterior of the house directly relate[d] to the residential use of the home since the defendants reside in the two-family dwelling”][internal quotation marks and citations omitted]; Yerdon, 259 A.D.2d at 866 [renovations performed on defendants' house by plaintiff enhanced both the intended residential use by defendants and their intended commercial use—while record did not reveal percentage of residential use versus commercial use, major part of the renovated house was going to be used by defendants as a residence and by a second-floor tenant, in spite of creation of two small spaces for bed and breakfast guests]; Small, 299 A.D.2d at 536 [although the defendants' brownstone was classified as a multiple dwelling, the defendants occupied the entire space except for a portion of one floor which they rented to a tenant, and contracted to have various work performed so that the building ultimately could be reclassified as a two-family dwelling, entitling them to exemption]; Johnson, 268 A.D.2d at 784 [in two-story structure, where business of defendants occupied four rooms and a bath on the first floor, where remaining rooms and bath on the first floor and all of the second floor are used for residential purposes, shingling of roof which caused accident primarily benefitted residential purpose of property and only provided incidental benefit to commercial business on first floor]; Hook, 231 A.D.2d at 883–884 [property which underwent repair on roof of barn on property with large single-family home-in which family lived and upon which major renovations were being performed-where defendant family intended in future to use three of the bedrooms as guest rooms for bed and breakfast, qualified for exemption]; Hosler, 15 AD3d at 926 [the televisions in the house and the rental apartment (a two-family dwelling) utilized one satellite television dish prior to the installation of the second one, thus plaintiff's installation of dish directly related to the residential use of the home]; Facteau, 293 at 847–848 [defendants who resided on first floor and rented second floor to a tenant were entitled to exemption because repainting of the exterior of the house directly related to the residential use of the home even though some degree of the work served a commercial purpose] ).
In any event, to the extent that the renovation work benefitted the retail commercial space located exclusively on the first floor (i.e.flooring, HVAC, plumbing) it was only ancillary “to the substantial residential purpose served by” converting the property from a three to a two-family residence (Bartoo, 87 N.Y.2d at 369;Johnson, 268 A.D.2d at 784). In addition, as defendant correctly notes, the accident took place while plaintiff was on the third floor inspecting the leveling for the fourth floor joists; areas which were renovated into the duplex apartments.
The case upon which plaintiff relies—Krukowski v. Steffensen (194 A.D.2d 179 [2d Dept 1993] )—is distinguisable from the instant case. Although the one-family house in Krukowski was defendant's principal residence, the building was used extensively for “regular commercial activity,” namely defendant's photography business, and “as much, if not more, for a commercial purpose than it was for a residential one” ( id. at 183–184), including the employment of one part-time employee and two full-time employees at the premises. Nor does this case compare to a three-dwelling building in which two of the apartments are rented, because a three-family dwelling is not entitled to the exemption ( see Hossain v. Kurzynowski, 92 AD3d 722, 723–724 [2d Dept 2012][defendant homeowner not entitled to exemption where two apartments together did not constitute a single-family dwelling, and the two apartments coupled with the third did not constitute a two-family dwelling]; see also Carrasco v. Sacramone, 5 Misc.3d 1017[A], 2004 N.Y. Slip Op 51412[U] [2004] [defendant who owned three-family dwelling was not entitled to the exemption where at time of accident homeowner lived on ground floor, and rented the other two floors to a family and a single tenant, respectively] ).
Defendant has also demonstrated, and the record reflects, that it did not direct and control the work (Parnell v. Mareddy, 69 AD3d 915, 916 [2d Dept 2010] ). “This inquiry focuses on whether the homeowners supervised the methods and manner of the work” ( id.). Here, Mr. Woodward testified that he hired an architect to manage the project; that the architect, with his approval, hired Integrity; that Integrity hired subcontractors at its own discretion, without Mr. Woodward's input; and that Mr. Woodward relied upon Integrity “to oversee and supervise the construction process from start to finish.”
Mr. Woodward also testified that he was not involved in “planning out the work” with Integrity; that he did not direct any contractors on-site on how to perform their work; that he did not know the “specifics” of the installation of the staircase, nor how the workers would access the upper levels of the building if the interior staircase were removed; that he merely engaged in “pleasantries” with the subcontractors when he visited the site; and that he met with the architect on site “every now and then” to review the progress. Finally, he testified that he was told by the architects and Integrity to speak only with them about change orders, and to refrain from speaking to the subcontractors about the scope of work to avoid any confusion.
Similarly, plaintiff testified that he only spoke with someone whom he believed worked for H & C, who did not discuss equipment or safety at the site, and that he had never met any other person from H & C. In addition, Mr. Diaz, Integrity's project manager, testified that Mr. Woodward came to the site once every two weeks and did not direct him or any other workers in how to perform their work.Mr. George Duffy, the president of Castle, testified that he only met Mr. Woodward after the accident, and that Mr. Woodward never instructed him to change either the scope of his work or the manner in which his workers were performing it. Further, Mr. Woodward testified that he did not provide any equipment to any of the contractors on the site, and it is undisputed that H & C did not provide the ladder plaintiff was using at the time of the accident, which was owned by Castle.
Finally, Mr. Woodward testified that he was H & C's sole member, that as a photographer, he had no experience in construction or real estate management, that he formed H & C to serve as a “vehicle” to purchase the property, and avers in his affidavit that H & C was not a “large, sophisticated management company, but a single-member LLC which owns only this one property.” Thus, while Mr. Woodward was engaged in commercial photography, he was lacking the requisite business sophistication in construction and property management, and was therefore the type of person the exception was enacted to protect (Umanzor, 48 AD3d at 552).
In his own motion, plaintiff has failed to demonstrate that the exemption does not apply. In this regard, he fails to reference the exemption at all. In addition, in opposition to this branch of H & C's motion, plaintiff has not raised a material issue of fact rebutting H & C's prima facie showing by arguing that H & C “deals in real estate for gain rather than for Mr. Woodward's personal benefit.” Specifically, plaintiff first references an internet blog posting stating that H & C “handles residential rental properties out of Elmhurst, Illinois,” but this blog constitutes inadmissible hearsay. Second, plaintiff annexes the cover page of the H & C's 2005 first mortgage instrument (c/o Duchossois Industries Family Office, 845 N. Larch Ave., Elmhurst, Ill 60126), which states, in pertinent part, “the Lien of this Mortgage shall not exceed $1,980,000.00 ... the property covered by this Mortgage is or will be secured by other than a 1 or 2 family residence,” suggesting that the property is not a two-family dwelling. However, as H & C correctly notes, the mortgage is not dispositive of the property's building classification. In any event, Mr. Woodward testified that the building contained three apartments before construction commenced, and that he intended to reduce the building to two apartments. Thus, the statement in the 2005 mortgage supports Mr. Woodward's testimony. Further, the DOB classified the building as a two-family dwelling.
Plaintiff also annexes a New York City Department of Finance Recording and Endorsement Cover Page with a Building Loan Mortgage instrument for $2,400,000.00, which was recorded on June 13, 2007, listing H & C (c/o Duchossois Industries Family Office, 845 N. Larch Ave., Elmhurst, Ill 60126) as mortgagor/borrower, reciting that it is subordinate to the 2005 mortgage. Although plaintiff states that the building loan was not recorded and its contents are unknown, he also states that by June, 2007, the subject property was encumbered by two mortgages totaling $4,280,000. Plaintiff then speculates that based upon values of the property ranging from approximately $400,000 to $1,774,000 from 2006 through 2011, respectively, the bank would have only issued the 2005 mortgage based upon its expectation that the property would produce income from the store and at least three residential apartments. Plaintiff also suggests that perhaps the mortgagee had a business relationship with H & C through Duchossois, which was not the subject of any pretrial discovery because H & C never pleaded the homeowner's exemption as an affirmative defense. Based upon these theories, plaintiff asserts that H & C's relationship to these financial entities and circumstances raises material questions of fact as to whether the exemption applies, namely that H & C was not merely created by Mr. Woodward to renovate the property as he did, but that H & C had “real estate ties to another company in Illinois,” which has a total of four different addresses in Illinois.Further, plaintiff asserts that H & C should not be permitted to assert this defense or that summary judgment should be denied “with the need for further discovery.” In addition, plaintiff argues that the gut renovation of the property included the store because its income was needed to fund the mortgages; that sixty percent of the renovation is dedicated to income, and that “[t]he evidence demonstrates that the commercial store was an integral part of the project.”
With respect to plaintiff's arguments that H & C either only engaged in commercial business dealings (i.e. he renovated the property to be solely income-producing) and/or that H & C is engaged in other business dealings in addition to having purchased the property, plaintiff has failed to submit any competent evidence demonstrating that H & C engaged in other business dealings besides the purchase of the brownstone. In any event, as noted above, corporate ownership of a property does not necessarily preclude application of the homeowner exemption (Lai–Hor Ng Yiu, 2011 N.Y. Slip Op 21272, * 14–15;Baez, 303 A.D.2d at 529;Telfer, 245 A.D.2d at 621;Castellanos, 77 AD3d at 879;Uddin, 33 AD3d at 692–693). Further, even assuming that H & C engaged in other business enterprises, it is still entitled to the exemption since the main purpose of the renovation was to convert the home from a multiple dwelling to a two-family residence (Bartoo, 87 N.Y.2d at 369;Outwater, 253 A.D.2d at 904;Fernez, 2 AD3d at 399;cf. Johnson, 268 A.D.2d at 784).
Notably, while plaintiff asserts that sixty percent of the renovation is dedicated to income, he does not dispute that two of the apartments (two-thirds of the property) constitutes a two-family dwelling. In fact, as noted above, plaintiff concedes that absent Mr. Woodward's purported ties to a rental company, the building would constitute a two-family dwelling. Moreover, although the contract between H & C and Integrity indicates planned renovation to the first floor, plaintiff does not support his claim that “the commercial store was an integral part of the project,” with any competent evidence. Nor can he in light of the renovation. In any event, as noted above, where, as here, the work performed “directly relates to the residential use of the home,” the exemption is available, “even if the work also serves a commercial purpose” (Bartoo, 87 N.Y.2d at 369;see also Small, 299 A.D.2d at 537 [defendants entitled to exemption where their building was classified as a multiple dwelling, but defendants occupied the entire space except for a portion of one floor which they rented to a tenant] ). As to counsel's argument regarding the bank's reason for issuing the mortgages, there is no dispute that the ground floor was to be an income-producing property. In any event, because the premises are a two-family dwelling, and because the purpose of the work was substantially related to the renovation of the two duplex apartments, the rental of the commercial space does not preclude defendant from entitlement to the exemption (Ramirez, 35 AD3d at 578).
Plaintiff also does not dispute that H & C did not direct or control the work, and thus has failed to raise an issue of fact with respect to this second prong of the exemption.
Finally, plaintiff's claim of surprise as to defendant's assertion of the exemption “defense,” and his argument that H & C waived the defense, are without merit. First, this pleading is not required by CPLR 3018. Nor is it required by any case law as these statutes constitute substantive law (§§ 240[1] and 241[6] ) (Telfer, 245 A.D.2d at 621 [“There is no merit to plaintiff's claim that defendant was required to plead as an affirmative defense its entitlement to the homeowner exemption as there is no express or implied requirement to plead such a defense”]; CPLR 3018[b]; cf. Ferres v. City of New Rochelle, 68 N.Y.2d 446, 450 [1986] [defendant not required to plead the applicability of General Obligations Law § 9–103 as an affirmative defense because “[i]f the statue is applicable, its sole effect is to establish the substantive law defining the extent of the duty owed to the plaintiff”]; Chiarini v. County of Ulster, 9 AD3d 769 [3d Dept 2004] [same] ). In any event, more than four months before Mr. Woodward was deposed, defendant denied in its response to plaintiff's notice to admit that the property was a “4 family” dwelling as indicated on the deed and that the structure was a “multiple dwelling,” alerting plaintiff that the characterization of the property as a multiple dwelling would be a contested issue. Moreover, Mr. Woodward's deposition, taken three months before H & C moved for summary judgment, should have placed plaintiff on notice of the defense. Also, the court notes that plaintiff performed an investigation with respect to the defense, and annexed the evidence this investigation yielded to his affirmation in opposition. In addition, but for one passing reference noted above-that the court should deny H & C's motion for summary judgment so that plaintiff could conduct further discovery-plaintiff fails to indicate, nor does plaintiff's evidence suggest, that discovery would uncover any further relevant information. Accordingly, H & C did not waive the defense and, under the facts here, the court does not find that plaintiff has been subjected to surprise or prejudice.
Based upon the foregoing, that branch of the motion of H & C for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) causes of action is granted and plaintiff's motion for partial summary judgment is denied.
Labor Law § 200 and Common-law Negligence
H & C also moves to dismiss plaintiff's Labor Law § 200 and common-law negligence causes of action. “[W]hen the manner of work is at issue, no liability will attach to the owner solely because [he or she] may have had notice of the allegedly unsafe manner in which work was performed” (Ortega v. Puccia, 57 AD3d 54, 61 [2d Dept 2008] ). “Rather, when a claim arises out of 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 the party to be charged had the authority to supervise or control the performance of the work” ( id.). “Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” ( id.). “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed ( id ).
Here, H & C has demonstrated, by plaintiff's own testimony, that the accident was caused by the manner in which plaintiff chose to inspect the fourth floor joints.Inasmuch as Mr. Woodward did not supervise or control any of the laborers at the site, including plaintiff, H & C has made a prima facie showing, as a matter of law, that it is entitled to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims. Plaintiff has failed to address these causes of action in his opposition. Accordingly, that branch of H & C's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims is granted.
Indemnification
H & C also seeks contractual and common-law indemnification from Castle. Castle cross-moves to dismiss these causes of action. In support of that branch of its motion for contractual indemnification, H & C argues that it is entitled to contractual indemnification, including costs and attorney's fees, because: 1) the A–401 Standard Form of Agreement and prime contract, which are explicitly incorporated by reference into the subcontract, contain similar indemnification provisions pursuant to which the “[s]ubcontractor” and the “[c]ontractor,” Castle and Integrity, respectively, agree to defend and indemnify the “[o]wner,” H & C, against claims for bodily injury “arising out of” the “performance” of their work, and to pay associated expenses and attorney's fees; 2) it was not negligent in connection with the accident; and 3) plaintiff's work arose out of Castle's work under the subcontract, namely inspecting the joists on the fourth floor which had been installed by Castle, while on a ladder owned by Castle, pursuant to a method of transversing between the floors, which was instituted by Castle. In this regard, H & C points out that Castle's June 12, 2007 subcontract with Integrity provides that: “This document has been prepared to be used in conjunction with the AIA document, A–401 Standard Form of Agreement between Contractor and Subcontract 1997 Edition (the A–401 Standard Form of Agreement).”
Further, H & C points out that the subcontract provides that “[t]he Subcontract Documents consist of the following ... AIA Form 401 (1997) Standard Form of Agreement between Contractor and Subcontractor and including all the Subcontract Documents referred to therein including those in Article 1.1 thereof .” In addition, H & C notes that the subcontract incorporates by reference the prime contract (between H & C and Integrity).
H & C has annexed a sample copy of an A–401 Standard Form of Agreement obtained from the Internet.
In support of its cross motion, and in opposition to this branch of H & C's motion, Castle argues, among other things, that H & C is not entitled to contractual indemnification on the grounds that: 1) the subcontract does not contain any type of indemnification language; 2) H & C's claim is improperly based upon the indemnification provision contained in the prime contract; and 3) that despite H & C's “reference by incorporation” argument, there is no evidence that the A–401 Standard Form of Agreement existed
and that if it did, the terms incorporated by reference would have been limited to the scope of work. Further, Castle points out that Mr. Diaz, its project manager, and Mr. Duffy, its owner, were aware of the subcontract, but that Mr. Diaz was unaware of the A–401 Standard Form of Agreement, and whether it obligated Castle to indemnify H & C, and Mr. Duffy did not know whether the subcontract incorporated the A–401 Standard Form of Agreement. Assuming Castle is bound by the A–401 Standard Form of Agreement, it argues it is only required to indemnify “to the extent [the loss is] caused by [its] negligent acts or omissions,” of which there is no evidence (emphasis added).
Stated otherwise, Castle argues there is no evidence that the A–401 Standard Form of Agreement was ever drafted and presented to H & C when the parties signed the subcontract, or at any other time.
These branches of H & C's motion and of Castle's cross motion are denied. In Spiegler v. Gerken Bldg. Corp. (35 AD3d 715 [2d Dept 2006] ), the general contractor (Integrity), sought contractual indemnification from its subcontractor based upon the same incorporation by reference language in its subcontract that Integrity relies upon here. The subcontractor moved to dismiss the cause of action on the ground that there was no agreement to indemnify. The Appellate Division affirmed the motion court's denial of the subcontractor's motion seeking to dismiss the general contractor's contractual indemnification claim, holding that the submission of the subcontractor left “unresolved material issues of fact as to whether the parties to the purchase order intended the provisions of the A–401 Standard Form of Agreement to be incorporated by reference” ( Id. at 717).
Similarly here, there is a question of fact as to whether Integrity and Castle, the parties to the subcontract, intended the provisions of the A–401 Standard Form of Agreement to be incorporated by reference. First, as in Spiegler, the subcontract contains the language incorporating the A–401 Standard Form of Agreement by reference. Second, although Mr. Duffy testified that the A–401 Standard Form of Agreement was attached to the subcontract when he signed it, Mr. Duffy also testified that he did not know whether the A–401 Standard Form of Agreement was intended to be incorporated into the subcontract. In addition, while Mr. Diaz was aware of the subcontract, he testified that he had never seen the A–401 Standard Form of Agreement as it related to the subject project, and could not say what the reference of incorporation language actually referenced. In contrast, Mr. Joseph Mosomillo, president of Integrity, states in his affidavit dated December 27, 2011, that he and Mr. Duffy signed the subcontract, and that “[i]t was understood between the parties and specifically mentioned in our subcontract that the subcontract documents included the A401 and all of its terms.”
Plaintiff asserts that the Appellate Division in Spiegler would have concluded differently had Integrity (in Spiegler ) “failed to produce an admissible” A–401 Standard Form of Agreement .
However, in Spiegler, as in this case, the record on appeal indicates that a blank, unsigned A–401 Standard Form of Agreement was only introduced in the action upon commencement of the general contractor's third-party action. Stated otherwise, in both cases, the A–401 Standard Form of Agreement was a blank, unsigned sample form, which in both cases was not annexed to the subcontract. Moreover, in Spiegler, unlike here, the subcontract did not list the A–401 Standard Form of Agreement as a subcontract document which was incorporated by reference, yet the Appellate Division still concluded that there were issues of fact as to whether the parties intended the provisions of the A–401 Standard Form of Agreement to be incorporated by reference.
Castle refers to the A–401 Standard Form of Agreement as the “AIA subcontact” but based upon the context of his argument, it seems clear that he is referring to the A–401 Standard Form of Agreement (Affirmation in Reply, p. 12 [first two paragraphs] ).
In any event, even were the A–401 Standard Form of Agreement given effect, the indemnification agreement therein requires Castle to indemnify H & C for losses arising out of Castle's work “but only to the extent caused by” its “negligent acts or omissions.” Here, a material question of fact exists as to whether Castle failed to properly secure the ladder and whether the ladder was defective. In this regard, it should first be noted that there is no record evidence to support H & C's contention that Castle was actively negligent because Castle directed plaintiff's laborers in how to use the ladder from which plaintiff fell, nor can Castle be deemed actively negligent because plaintiff was inspecting Castle's work (the fourth floor joists). Further, it is uncontroverted, as Mr. Duffy affirms in his affidavit, that Castle built the subfloors (to the extent the construction plans permitted) according to Integrity's plans and specifications; that as a subcontractor, Castle's scope of work did not require it to supervise plaintiff; that Castle left the site per Integrity's instruction on June 27, 2007, at least 10 days before the accident occurred, completing as much as work as possible in accordance with Integrity's June 14, 2007 purchase order; and that as site supervisor, it was plaintiff's responsibility to oversee safety at the work site. However, Mr. Duffy concedes that either Integrity or plaintiff directed it to provide ladders to access the upper floors of the building.
Further, it is true that Mr. Duffy states that Castle provided equipment, including ladders, which were intended for use only by its own employees, that before Castle left the site on June 27, 2007, it instructed its carpenters to remove all of its tools, including its ladders, to store them in a single location, and to chain and lock the ladders, which was Castle's custom and practice. However, Castle points to no evidence that this was actually performed. In fact, plaintiff testified there was no specific storage area on the site were Castle kept its tools and equipment, and when asked whether anyone at the site had access to the “extended A-frame ladder that [he] used,” plaintiff responded that to his recollection, “it was a free for all.” In addition, Mr. Duffy testified that he did not know if the ladder was inspected before Castle started construction. Finally, despite Castle's contention that there is no evidence that any of its equipment was defective, plaintiff testified when climbing down the ladder, it moved or “gave out,” meaning that “the bottom treads of the ladder slipped out.” Thus, a question of fact exists as to whether Castle was negligent in failing to properly inspect and secure the ladder before it left the site, and whether the ladder was defective. Based upon the foregoing, that branch of the motion of H & C for summary judgment on its claim for contractual indemnification is denied and that branch of Castle's cross motion for summary judgment dismissing this cause of action is denied.
Mr. Duffy avers on page 4 of his affidavit that “At no time did Integrity, or Hugh Assevero, order Castle to construct, install or provide any type of device or equipment, other than ladders, which could be used to access the upper floors of the buildings” (emphasis added).
Common-law Indemnification
H & C moves, in the alternative, for summary judgment on its claim for common-law indemnification. Specifically, H & C argues that Castle “should be obligated to provide common-law indemnification to [it] to the extent that [it] is held vicariously liable for any of plaintiff's alleged injuries.” Castle cross-moves to dismiss this cause of action.
Inasmuch as H & C only seeks this relief in the alternative, and in light of this court's determination granting that branch of H & C's motion to dismiss plaintiff's Labor Law §§ 240 and 241(6) causes of action, it is unnecessary to reach this portion of H & C's motion and Castle's cross motion. In any event, were the court to consider the merits of these branches of the movants' motions, inasmuch as there is a question of fact as to whether Castle was negligent, these branches of the H & C's and Castle's motions would be denied (Hart v. Commack Hotel, LLC, 85 AD3d 1117, 1118–1119 [2d Dept 2011] ).
Breach of Contract to Procure Liability Insurance
H & C moves for summary judgment on its claim against Castle for breach of contract to procure liability insurance. In support of this branch of its motion, H & C argues that Castle agreed in the subcontract to name the “Owner” (H & C) as an additional insured on its liability policy, and to provide insurance covering the instant liability claim. H & C also asserts that Castle submitted a certificate of insurance to Integrity showing H & C as a named insured on its liability policy, which it claims is further proof of Castle's obligation under its subcontract to provide coverage to it. Thus, H & C contends that “to the extent that any insurance policy procured by Castle pursuant to its subcontract does not name [it] as an additional insured, or does not provide coverage for the instant loss, which arose from Castle's work, Castle has breached its contractual obligations.”
Castle cross-moves for summary judgment dismissing this cause of action. In support of this branch of its cross motion, Castle argues that the subcontract does not pertain to additional insured coverage, and does not require it to procure liability insurance for H & C; rather it simply requires it to provide a certificate of insurance showing it had liability and workers' compensation coverage, which it provided. In any event, assuming it had a contractual obligation to purchase insurance for H & C, Castle asserts that there is no evidence that it breached this contractual duty.
In opposition to this branch of Castle's cross motion, H & C argues that Castle agreed in the body of the subcontract to procure comprehensive general liability insurance coverage with limits as set forth in the prime contract, to provide for “Blanket Contractual Liability,” and to provide a certificate of insurance showing “by name, each and every one of the parties required in the Prime Contract to be listed as additional insureds” ( see page 3, subcontract).
This portion of H & C's motion and Castle's cross motion must be denied. In this regard, H & C has failed to establish that Castle is required, pursuant to the contract, to purchase it liability insurance. Review of the subcontract reveals that there is such provision. In this regard, the subcontract requires Castle to purchase “Comprehensive General Liability insurance with limits (per Prime Contract Requirements) ... for all of the following: 1. Personal injury groups A, B and C with employee' deleted. 2. Broad Form Property Damage including XCU hazards, where applicable. 3. Independent Contractors. 4. Blanket Contractual Liability, including indemnification of [Integrity] ... 5. Products Liability and Completed Operations Liability [ ] and 6. Occurrence' Bodily Injury and Property Damage Form.” The subcontract further requires Castle to “file with the Contractor (Integrity) an original Certificate of Insurance evidencing the existence of such insurance.” In addition, as pointed out by H & C, the subcontract provides that “[t]he block indicating the identity of the Certificate Holder shall be filled in to show Integrity ... as well as showing, by name, each and every of the parties required in the Prime Contract to be listed as additional insureds and the form shall also show ... all of the such certificate holders as additional insureds.” In this regard, AIA Document A201 1997 provides in section 11.1.4 that “[t]he insurance required hereunder shall name Owner, the Owner's lender which is The Northern Trust Company ... as additional insureds. Contractor shall deliver insurance binders evidencing same, prior to commencing any Work.”
These provisions do not require Castle to procure liability insurance for H & C. Although the subcontract requires Castle to purchase general liability insurance, “including coverage for ... “Blanket Contractual Liability, including indemnification of INTEGRITY CONTRACTING, INC,” it does not require Castle to provide general liability insurance for H & C. Rather, the subcontract only requires Castle to provide a certificate of insurance showing that it had both liability and workers' compensation coverage. Even assuming that the provision in the prime contract that requires Castle to name H & C as additional insured raises a question of fact as to Castle's obligation to procure this insurance, H & C has not made a prima facie showing that Castle failed to provide it. Thus, this branch of H & C's motion must be denied.
Since the record reveals that Castle is not required to purchase H & C liability insurance, and that—assuming such a duty existed—there is no evidence that Castle breached it, this branch of Castle's cross motion to dismiss is granted.
In sum, those branches of H & C's motion to dismiss plaintiff's Labor Law §§ 240(1), 241(6), 200 and common-law negligence causes of action are granted. That branch of H & C's motion for contractual indemnification and damages for breach of contract to procure insurance is denied. That branch of H & C's motion for common-law indemnification from Castle is denied as academic. That branch of Castle's cross motion for summary judgment dismissing H & C's cause of action for breach of contract for failure to procure insurance is granted, and that branch of Castle's motion to dismiss H & C's cause of action for contractual indemnification is denied.
This constitutes the decision and order of the court.