Opinion
7606/04.
Decided June 17, 2008.
The following motion and cross-motions are decided in this order.
Defendant Loewen Development of Westchester, LLC, s/i/h/a Laurel Development, LLC, (Laurel) and defendant Howard Loewentheil, Inc. (Loewenthiel, Inc.) [all collectively referred to herein as Loewentheil] move, pursuant to CPLR § 3212, for summary judgment dismissing plaintiffs Hauptners' (Hauptner) complaint or, in the alternative, granting summary judgment to Loewentheil on its claims against B V Contracting Associates, Inc., and B V Contracting Enterprises, Inc. (cumulatively, B V), and Loewentheil also seeks judgment on the cross-claims it asserted against third-party defendant, Vitti Roofing and Siding Co., and Mario Vitti Contracting, Inc. (MVRS), premised on common law and/or contractual indemnification.
Defendant B V cross moves, pursuant to CPLR § 3212, for summary judgment dismissing plaintiffs Hauptners' punitive damages claim. B V also opposes Loewentheil's motion for summary judgment.
Third-party defendant MVRS also cross moves, pursuant to CPLR § 3212, for summary judgment dismissing plaintiffs' punitive damage claim. MVRS also opposes Loewentheil's motion for summary judgment and indemnification.
Hauptner, also, by separate cross motion, moves, pursuant to CPLR 3211(b), for dismissal of all affirmative defenses interposed by defendants.
Background:
Hauptner commenced this action to recover damages for personal injuries allegedly sustained on September 24, 2003 as a result of being struck by an aluminum ladder which apparently fell from the side of a neighboring building, that was part of a condominium complex under construction. According to Hauptner, this ladder fell from a rear wall of a building under construction at 238-242 Bowne Street, Bronx County, (the project,) into his home at 221 Kirby Street, Bronx County. Plaintiffs' yard is adjacent to the project and is separated by a five to ten foot tall brick wall.
Plaintiffs and Defendants Contentions:
Hauptner testified that the ladder fell into his yard and struck him, propelling him out of his chair into his swimming pool. He attests that the injuries he sustained include, inter alia, a torn left rotator cuff, tears in the tendons of his left shoulder, and torn ligaments in both knees. He also contends that the ladder was not adequately secured which caused the ladder to fall into his back yard after construction had stopped for the day. Hauptner testified that after the accident, he and his grandson, with whom he had been sitting when the ladder came into the yard, took the ladder and chained it to a deck near his pool. Hauptner later gave the ladder to Louis Martin Trojan, (Trojan) the project manager, when Trojan came to Hauptner's house to retrieve it. The evidence indicates that Hauptner unchained the thirty-foot ladder and several workers from B V took it and carried it back to the project. (See B V's Exhibit H, Plaintiff's Deposition Transcript).
Hauptner commenced his action on or about January 27, 2004. (See B V Exhibit "A", Original Complaint). On or about January 23, 2006, B V commenced a third-party action against MVRS. Plaintiffs then served an amended complaint, pleading causes of action against both B V and MVRS. (See B V Exhibit F-Plaintiffs' Amended Complaint). Hauptners' complaint contained a separate cause of action for punitive damages contending that the ". . . gross, wanton . . ." behavior of the defendants "constituted gross negligence and recklessness and were in total disregard for the well-being of the plaintiff . . .". Laurel is the owner of the land at the construction site. Loewentheil, Inc., a general contractor, was retained to construct a condominium complex adjacent to Hauptners' property. Loewentheil's project manager was Martin Trojan. (Plaintiffs' Exhibit D, Trojan's Deposition Transcript).
On or about April 7, 2003, Loewentheil, Inc., contracted with B V to perform carpentry work on the project. Their contract required B V to supply its own labor, ladders, scaffolding and to be responsible for ". . . unloading, storing, cleanup of all areas at a day's end . . .". (B V Exhibit L-Loewentheil, Inc. /B V contract penultimate page.) While B V acknowledges that it kept several ladders at the project for the use by its workers, Eric Covington (Covington), a general foreman employed by B V, stated at an examination before trial, that the ladder which fell into Hauptners' yard belonged to B V.
Covington was employed by B V as a general foreman "to oversee" the project and "make sure things are done correctly." He testified that B V was retained to perform all of the carpentry work for the project. It was Covington who was initially informed that an aluminum ladder belonging to B V ended up in Hauptners' backyard. This aluminum extension ladder, as described by Covington, approximated 30 to 40 feet in length. Hauptner initially refused to return the ladder which had fallen into his backyard. Covington then called Trojan, the project manager, and solicited Trojan to meet with Hauptner to retrieve the aluminum ladder and return it to B V for use at the project. Trojan went to Hauptners' home with B V's workers, and met with Hauptner who informed him about what had occurred. Hauptner unchained the ladder which was then carried back to the project by B V's workers. When asked at his examination before trial why he went to retrieve the ladder, Covington responded "well because I knew it was ours."
It is also evident from the testimony provided by Covington that aluminum ladders such as the ladder which fell into plaintiffs' backyard were used by B V to affix pump jacks to the roof of buildings under construction. Covington also stated that it was B V's general procedure to check on ladders when B V employees left the project. Covington also stated that B V, and the roofing contractor MVRS, brought their own ladders to the project during construction of the housing units.
MVRS entered into a contract with Loewentheil to do roofing, gutter and related work on the project. (See B V Exhibit M-Loewentheil/MVRS' contract). Mario Vitti (Vitti), testifying for MVRS, stated that he had four men working on the project and that they brought their own tools, including ladders. While Vitti did not testify that one of the ladders his employees were using was missing during the period that his company was working at the job site, he did acknowledge that his men used aluminum ladders in the performance of their work, that his workers were responsible for their own activities at the job site; they did not receive instructions or directions from Loewentheil's "superintendent," and that Vitti's employees were responsible for removing the ladders they used at the end of each work day. He also stated that the superintendent's (referring to Trojan) involvement was limited to coordinating the work of the subcontractors and time scheduling. (See B V Exhibit K-Vitti's Deposition Transcript).
Loewentheil also contracted for the services of "Pro Safety Services, LLC" (ProSafety) as part of the project plan. It is unrefuted that ProSafety provided independent personnel who performed random safety inspections at the project site. ProSafety informed Loewentheil regarding safety problems posed by working conditions at the site. A "Field Observations" report, prepared by ProSafety dated August 28, 2003, noted, inter alia, that: "Ladder system needs to be secured and have guard rail to exposed side also must extend 3" above final step". However, a later report, dated September 16, 2003, eight days before the accident, also prepared by Pro Safety does not mention unsecured ladders or otherwise indicate that unsecured ladders was a continuing problem.
Trojan testified that it was his responsibility to coordinate the various trades and sub-contractors working on the project. He acknowledged that he worked out of a trailer and was at the project five days a week, from 7:00A.M. to 3:30 P.M. Other than Trojan, there was only one other Loewentheil employee at the project, an unnamed laborer whose work activity is not discussed. Loewentheil kept no tools, ladders, or like equipment at the project.
Trojan said he first learned of the incident involving Hauptner when he received a call from Covington to go to plaintiffs' home to retrieve the ladder. Trojan testified that when he met Hauptner, he said that the ladder was not properly secured and blew into his yard while he and his wife were seated by the pool. Trojan testified that he recovered the ladder from plaintiff and returned it to the project, giving it to B V's general foreman. Trojan later signed a three-page report concerning this incident for Loewentheil (See Hauptner Exhibit H,-Trojan's Report).
Trojan testified at his examination before trial that the ladder which he retrieved from Hauptners' residence was owned by B V, and when asked what formed the basis for his opinion, he stated that B V brought their own materials to the job site. He also said that B V did the siding (i.e., applying materials to weatherproof the outside walls) which was part of B V's responsibilities and each subcontractor was responsible for their own ladders.
Trojan testified that he was not aware of problems concerning ladders left at the project after working hours prior to the incident involving Hauptner. While Trojan said that he had been present "several times" when a ProSafety inspector randomly arrived at the project, he said he only received oral suggestions regarding problems or changes that needed to be addressed.
Loewenthiel argues that plaintiffs failed to demonstrate that they were responsible for not securing the ladder or that they caused the condition which gave rise to plaintiff's alleged injury, nor did defendants B V and MVRS, or Hauptner establish that Loewentheil had notice of a dangerous condition that was the proximate cause of the incident which occurred on September 24, 2003. The evidence presented established that the aluminum ladder, which is the subject matter of Hauptners' claim, was under the control of B V's employees (who consistently used aluminum ladders), that the ladder retrieved by Trojan was returned to B V and that B V employees were at the project on the day of the accident using aluminum ladders while performing construction activity such as "siding".
In addition, according to the testimony presented by Trojan, the project manager, B V was responsible for all scaffolding and ladders B V used at the project. Moreover, completely absent is proof that Loewentheil supervised or controlled the work or conduct of employees who were employed by subcontractors such as B V, on the project.
Trojan's testimony is quite clear. He described his duties which were not controverted. As a project manager he was required to coordinate the trades that were involved with the construction of several buildings. Trojan testified that Loewentheil had only one other employee, a laborer, at the job site. He stated that, on the day of the accident, before he went to plaintiffs' home to retrieve the ladder, he observed a ladder leaning against one of the houses under construction and that each subcontractor was responsible for their own equipment. Trojan specifically denied that he directed or controlled B V employees. He also testified that B V never denied that their ladder was the ladder that came in contact with Hauptner; and, Trojan also stated that B V was responsible for the placement and safeguarding of ladders at the project. Trojan acknowledged the presence of ProSafety, a company employed by Loewentheil to ensure safety practices were followed by the subcontractors and to make recommendations to the project developer.
Summary Judgment for Claims of Contribution and Indemnification:
Conversely, Loewentheil contends that, should its motion be denied, it is entitled to indemnification from B V and/or MVRS. Loewentheil refers to its contract with the sub-contractors, calling for B V to ". . . supply its own labor, ladders, scaffolding" and to be responsible for ". . . unloading, storing, cleanup of all areas at day's end . . ." and for MVRS to conduct its work in a professional manner and in accord with existing codes.
It is well settled law that a party is not entitled to summary judgment on its claims of indemnification where an issue of fact concerning that party's negligence remains unresolved. (See generally, Kelly v. Diesel Constr. Div., 35 NY2d 1, 6, Guillory v. Nautilus Real Estate, 208 AD2d 336, Lv denied 86 NY2d 881; Brezinski v. Olympia York Water St. Co., 218 AD2d 633). A contract which purports to provide for the indemnification of a negligent party is, itself, null and void pursuant to General Obligations Law Section 5-322.1. Public policy considerations clearly support such a rule of law. (See also, Itri Brick Concrete Corp. v. Aetna Casualty Surety Co., 89 NY2d 786 (1997); et al.).
Consequently, in order for Loewentheil to prevail on its motion for alternative relief, the law places on the proponent seeking such relief the burden of affirmatively proving its lack of negligence proximate to the underlying accident or injury. As stated in Reynolds v. County of Westchester, 270 AD2d 473 (2nd Dept. 2000):
. . . Pursuant to General Obligations Law § 5-322.1, any construction contract purporting to to indemnify a party for its own negligence is void and unenforceable, although contracts requiring parties to procure insurance are not similarly void (see, Kinney v. Lisk Co., 76
NY2d 215). Consequently, a party to a contract who is a beneficiary of an indemnification provision must prove itself to be free of negligence; to any extent that the negligence of such a party contributed to the accident, it cannot be indemnified therefor (see Kennelty v. Darlind Constr., 260 AD2d 443; Stein v. Yonkers Contr., 244 AD2d 476; Dawson v. Pavarini Constr. Co., 228 AD2d 466)."
Manifestly, in the event this court denies Loewentheil's motion to dismiss plaintiffs' claims, whether or not Loewentheil is entitled to indemnification must await resolution at the trial.
Plaintiffs' Punitive Damage Claim:
Loewentheil, B V, and MVRS all separately contend that the injured plaintiff Hauptner is not entitled to punitive damages, since the allegations set forth in his complaint do not rise to the level of gross and wanton conduct which is the proof required to support an award of punitive damages. (Citing to Giblin v. Murphy, 73 NY2d 769, 772 (1988); Sardanis v. Sumitomo Corp., et al., 279 AD2d 225 [1st Dept. 2001]).
Plaintiffs' supplemental amended verified complaint pleads five separate causes of action. The second cause of action is addressed to defendants Loewentheil, B V Contracting, and B V Associates. Paragraph twenty-one charges defendants with engaging in gross wanton and reckless behavior. The next paragraph demands punitive damages.
At the outset, it must be emphasized that, unlike compensatory damages, the purpose of punitive damages is not to remedy a private wrong. Exemplary damages have been allowed in cases where the wrong complained of is morally culpable or where the conduct complained of was actuated by evil and reprehensible motives. Thus, when a defendant's conduct reaches what can be considered wanton and malicious, there may be a recovery of exemplary damages, not only to punish the defendant, but to deter him and others from indulging in similar conduct (See Walker v. Sheldon, 10 NY2d 401, 179 N, E, 2d 497; 223 NYS2d 488.) Certainly where the requisite proof is presented, punitive damages will be awarded to vindicate public rights (see Garrity v. Lyle Stuart Inc., 40 NY2d 354, 358; 353 NE2d 793, 386 NYS2d 831[1976]).
Thus, a private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he was aggrieved and which is actionable as an independent tort, but also that such conduct was part of a pattern of similar conduct directed at the public generally (see New York University v. Continental Ins. Co., 87 NY2d 308, 315-316, 662 NE2d 763, 639 NYS2d 283; Rocanova v. Equitable Life Assurance Society of United States, 83 NY2d 603, 613, 634 NE2d 940, 612 NYS2d 339; RTC Industries, Inc. v. Good-time Home Video Corp., 1997 WL 35524 [SDNY 1997]). What must be presented is harmful conduct that is viewed as malicious or otherwise aggravated beyond mere negligence (See McDougald v. Garber, 73 NY2d 246, 536 NE2d 372, 538 NYS2d 937[1989]). Finally, an award of punitive damages must be supported by clear, unequivocal, and convincing evidence ( Munoz v. Puretz, 301 AD2d 382, 753 NYS2d 463 [1st Dept. 2003]). Therefore, extending every favorable inference to Hauptner's allegations and contentions, he failed to meet this standard. The allegations and, more importantly, Hauptner's proof does not constitute evil and reprehensible conduct by the defendants.
Finally, this court is cognizant that Hauptner has, by way of a separate cause of action, pled a punitive damage claim. The court in Mayes v. UVI Holdings, Inc., 280 AD2d 153, 723 NYS2d 151(1st Dept. 2001) held that there is no independent cause of action for punitive damages.
Loewentheil's Motion to Dismiss Plaintiffs' Complaint:
Both B V and MVRS argue that the evidence adduced establishes that Loewentheil had prior notice of a dangerous condition at the project site, and exercised control over the work performed by the sub-contractors. Neither defendant has provided this Court with evidence supporting their contention. Not one scintilla of evidence is provided by plaintiff, or defendants B V and MVRS, to demonstrate that Loewentheil or their project manager directed their workers in performance of their contract obligations or work. Indeed Covington's deposition testimony establishes that his interest in retrieving the aluminum ladder rested on his belief that the ladder belonged to B V. As to the notice argument, plaintiff, B V and MVRS, point to Loewentheil's contract with ProSafety who initially raised in their August 23, 2003 report that "Ladder system needs to be secured . . ." However, both B V and MVRS omit mentioning that the report, dated September 16, 2003, issued eight days before the accident, did not contain any reference to ladders.
B V/MVRS next argue that the evidence adduced frames at least an issue of fact that Loewentheil was proximately negligent since the aluminum ladder allegedly blew from the project site into plaintiffs' back yard. (Citing Itri Brick Concrete Corp. v. Aetna Casualty Surety Co., 89 NY2d 786; Sheehan v. Fordham University et al, 259 AD2d 328 [1st Dept. 1999]). The mere happening of the accident now before this court does not ipso facto raise the issue regarding Loewentheil's negligence.
Plaintiffs' first cause of action is addressed to all defendants; however, plaintiffs seek a recovery against Laurel, the property owner, based on said defendant's ownership of the premises where the accident occurred. Manifestly, plaintiffs have brought this action to recover monetary damages grounded on Loewentheil's negligence.
The threshold issue involving Loewentheil, Inc. a general contractor, is whether Loewentheil had a cognizable duty to prevent the occurrence which led to plaintiff's injury (see generally Palka v. Servicemaster Mgt. Services Corp., 83 NY2d 579, 584-585, 634 NE2d 189, 611 NYS2d 817). Whether a duty of reasonable care is owed by a tortfeasor to an injured party is not discerned from an "algebraic formula" ( Pulka v. Edelman, 40 NY2d 781, 783). The nature of the inquiry depends, inter alia, on the particular facts and circumstances in which the duty arises and is a means of apportioning risks and allocating the burden of loss (see Waters v. New York City Housing Authority, 69 NY2d 225, 505 NE2d 922, 513 NYS2d 356).
It is also clear that landowners, such as Laurel, have a duty to maintain their property in a reasonably safe condition under existing circumstances including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. ( Basso v. Miller, 40 NY2d 233, 241, 352 NE2d 868, 386 NYS2d 564;[1976] Pappalardo v. New York Health Racquet Club, 279 AD2d 134, 140-141, 718 NYS2d 287 [1st Dept. 2000]).
In order to make out a prima facie case of negligence in cases involving defective or dangerous conditions present on property, a plaintiff must "demonstrate either that the defendant created the alleged hazardous condition or that the defendant had actual or constructive notice of the defective condition and failed to correct it" ( Leo v. Mt. S. Michael Academy, 722 AD2d 145, 146, 708 NYS2d 372[1st Dept.2001]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." ( Gordon v. American Museum of Natural History, 67 NY2d 836, 837, 492 NE2d 774, 501 NYS2d 646). Where a defendant moves for summary judgment, it has the burden in the first instance to establish, as a matter of law, that it did not create the dangerous condition which caused the accident or that it did not have actual or constructive notice of the condition (see Giuffrida v. Metro N. Commuter R.R. Co., 279 AD2d 403, 404, 720 NYS2d 41[2001]).
Here, defendants Loewentheil (Laurel and Lowentheil Inc.) met their burden of demonstrating they neither created or caused the ladder to be left unsecured during the construction of the condominium units.
Plaintiffs failed to submit admissible evidence creating an issue of fact establishing that the alleged condition was attributable to conduct on the part of Laurel, the owner, or Loewentheil, Inc., the general contractor, namely whether the condition, the unsecured ladder was visible and the period of time that the condition existed prior to the accident. Guiffrido v. Metro North Commuter RR Co., 279 AD2d 403, 404, 720 NYS2d 41 (1st Dept. 2001).
Conclusion:
Consequently, Loewentheil's motion is granted to the extent that plaintiffs' complaint is dismissed as against them (Laurel and Loewentheil Inc.). That part of Loewentheil's motion seeking indemnification is rendered moot.
Defendants B V's cross motion and MVRS's cross motion to dismiss plaintiffs' second cause of action for punitive damages is granted. Plaintiffs' Cross Motion is denied. This constitutes the decision and order of this court.