Opinion
Index No. 521822/2017
12-23-2022
JAN KRUPA, Plaintiff, v. 10 HURON FS CONDO LLC, MACK REAL ESTATE CAPITAL GROUP LLC, MP 145 WS LESSEE LLC, MP 145 WS OWNER LLC, MP 145 WEST VENTURE LLC, NOBLE CONSTRUCTION GROUP, LLC, GANE SERVICES, INC. and MONOLITHIC CONTRACTING, INC., Defendants, 10 HURON FS CONDO LLC, MACK REAL ESTATE CAPITAL GROUP LLC, MP 145 WS LESSEE LLC, MP 145 WS OWNER LLC, MP 145 WEST VENTURE LLC, NOBLE CONSTRUCTION GROUP, LLC Third-Party Plaintiffs, v. POLMAR IRON WORKS, INC., MONOLITHIC CONTRACTING, INC, and GANE SERVICES, Third-Party Defendants
Unpublished Opinion
MS #6, MS #8, and MS #9
PRESENT: HON. WAYNE P. SAITTA, JUSTICE.
DECISION AND ORDER
Wayne P. Saitta, Judge
The following papers numbered on this motion:
NYSCEF Doc Numbers
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 199-193, 233, 343, 278, 347-350, 360
Answering Affidavit (Affirmation) 338, 341-342, 279-286, 336-337, 344, 362-363, 365, 370-377, 373-374, 382
Reply Affidavit (Affirmation)364, 385-386
Supplemental Affidavit (Affirmation)___
Pleadings -Exhibits194-232, 339-340, 287-335, 366-369, 351-358
Stipulations - Minutes___
Filed Papers___
This action arises from a construction accident in which Plaintiff slipped on a loose piece of plywood and fell through an opening in the floor that the plywood was covering.
Defendant/Third-Party Plaintiff 10 HURON FS CONDO LLC (Defendant HURON) owned the Premises.
Defendants/Third-Party Plaintiffs MACK REAL ESTATE CAPITAL GROUP LLC (Defendant MACK), MP 145 WS LESSEE LLC (Defendant 145 Lessee), MP 145 WS OWNER LLC (Defendant 145 OWNER), and MP 145 WEST VENTURE LLC (Defendant 145 VENTURE) were sued as owners and lessee's of the Premises.
Defendant/Third-Party Plaintiff NOBLE CONSTRUCTION GROUP, LLC (Defendant NOBLE) was the general contractor at the Premises. Defendant/Third-Party Defendant MONOLITHIC CONTRACTING, INC. (Defendant MONOLITHIC) was a concrete subcontractor hired by Defendant NOBLE.
Defendant/Third-Party Defendant GANE SERVICES, INC. (Defendant GANE) was also a subcontractor of Defendant NOBLE working at the Premises.
Plaintiff was an employee of Third-Party Defendant POLMAR IRON WORKS, INC. (Third-Party Defendant POLMAR). Third-Party Defendant POLMAR was the ironwork subcontractor of Defendant NOBLE at the Premises.
Plaintiff was the onsite ironworker foreman at the Premises for Defendant POLMAR and was responsible for directing POLMAR's workers on the site. On the day of his accident, POLMAR's workers were there to install steel dunnage on the 41st floor. While on the 41st floor, Plaintiff was injured when he stepped on unsecured plywood that was covering a hole in the concrete on the 41st floor and the plywood shifted causing Plaintiff to fall through the hole to the 40th floor.
Plaintiff's complaint alleges three causes of action: Labor Law § 240(1), Labor Law § 241(6), and Labor Law § 200 and common law negligence.
Plaintiff moves for summary judgment against Defendants HURON, NOBLE and MONOLITHIC on his claims pursuant to Labor Law § 240(1) and § 241(6) and against Defendants NOBLE and MONOLITHIC for his claim pursuant to Labor Law § 200.
Defendants HURON, MACK, MP 145 LESSEE, MP 145 OWNER, 145 VENUTRE, and NOBLE cross-move to dismiss Plaintiff's claims pursuant to Labor Law § 241(6) and § 200.
Defendants MACK, MP 145 LESSEE, MP 145 OWNER, 145 VENUTRE, and crossmove to dismiss Plaintiff's claims all claims against them. In opposition, Plaintiff states he does not oppose that part of the cross-motion to dismiss all claims as against Defendants MACK, MP 145 LESSEE, MP 145 OWNER, and 145 VENUTRE.
Defendants HURON, MACK, MP 145 LESSEE, MP 145 OWNER, 145 VENUTRE, and NOBLE also cross-move for summary judgment on their third-party claims for contractual indemnification, common law indemnification, and breach of contract as against Defendants POLMAR, MONOLITHIC and GANE and to dismiss the cross claims against them.
Defendant GANE cross-moves to dismiss Plaintiff's Complaint, the Third-Party Complaint, and all cross-claims as against it.
Plaintiff's motion for summary judgment
Labor Law § 240(1)Plaintiff moves for summary judgment on the issue of liability pursuant to Labor Law § 240(1) as against Defendants HURON, NOBLE and MONOLITHIC.
Defendant MONOLITHIC opposes arguing that Plaintiff's motion is premature and that it was not an agent of the owner/general contractor.
Defendants HURON and NOBLE oppose arguing that Plaintiff's motion is premature and that there are questions of fact as to whether Plaintiff was the sole proximate cause of his accident.
'"A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant'" (Mogrovejo v. HG Housing Development Fund Company, 207 A.D.3d 457, 460 [2d Dept 2022], quoting 211-12 N. Blvd. Corp. v. LIC Contr., Inc., 186 A.D.3d 69, 83 [2d Dept 2020]).
"CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated (Vukel v. Joan DiGirolomo Irrevocable Trust, 172 A.D.3d 951, 953 [2d Dept 2019]). "'This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'" (id., quoting TD Bank, NA. v. 126 Spruce Street, LLC, 117 Ad3d 716, 717 [2d Dept 2014]).
Here, the only witness to be deposed thus far is Plaintiff. All Defendants' depositions are outstanding. There has been no deposition of non-party Robert Krupa,
who was subpoenaed for a deposition prior to Plaintiff's motion and is identified as a witness in the City Safety Accident Report. Krupa denies that he and Plaintiff removed the cover or moved materials through the opening in the floor.
Also, no party has had the opportunity to depose Wilbur Flores, the intended deponent to be produced as a witness on behalf of Defendant MONOLITHIC. Plaintiff submitted an affidavit of Flores. Flores' affidavit differs from Plaintiff's testimony that the cover was not removed from over the hole. Flores states that on the morning of Plaintiff's accident, he observed the ironworkers, remove the plywood covering a hole in the roof to hoist materials through it.
As Flores' affidavit provides some circumstantial evidence that Plaintiff may have been responsible for removing the covering of over opening in the floor. Defendants are entitled to depose witnesses who have information concerning the accident such as Flores, and Robert Krupa.
Also, Defendant MONOLITHIC has not had an opportunity to depose Defendant NOBLE and other defendants as to the which other sub-contractors may have had responsibility for maintaining the covering over the opening or moved that covering.
For these reasons that part of Plaintiff's motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1) as against Defendants HURON, NOBLE, and MONOLITHIC must be denied.
Labor Law § 241(6)Plaintiff moves for summary judgment on the issue of liability pursuant to Labor Law § 241(6) as against Defendants HURON, NOBLE and MONOLITHIC who all oppose the motion.
Plaintiff has plead a violation of Industrial Code § 23-1.7(b)(i)(i). Section 23-1.7(b)(1)(i) specifically covers hazardous openings and states:
Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).
As discussed above the Flores affidavit provide some circumstantial evidence that Plaintiff may have been responsible for having the covering over the opening removed Defendants are entitled to depose witnesses that have information concerning whether there was a secure covering over the opening and by whom it was removed.
Therefore, granting summary judgment as to the 241(6) claim is not appropriate.
Labor Law § 200 and Common Law Negligence
Plaintiff moves for summary judgment against Defendants NOBLE and MONOLITHIC for his claim pursuant to Labor Law § 200.
"Section 200 of the Labor Law is a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work" (Zukowski v. Powell Cove Estates Home Owners Association, 187 A.D.3d 1099, 1101 [2d Dept 2020], quoting Lombardi v. Stout, 80 N.Y.2d 290, 294 [1992]).
Labor Law § 200 cases fall into two categories: (1) those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and (2) those involving the manner in which the work is performed.
Plaintiff's accident arose from a dangerous condition at the premises, not by the means and methods employed.
"Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a landowner may be liable under Labor Law § 200 if it "either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition" (Rojas v Schwartz, 74 A.D.3d 1046, 1047 [2nd Dept 2008].)
As discussed above there is a question of fact as to whether Defendants NOBLE and MONOLITHIC created the condition or Plaintiff caused the covering of the opening to be removed. Also, it has not been established that Defendants NOBLE, or MONOLITHIC had actual or constructive notice that the opening was uncovered.
For these reasons it is not appropriate to grant the Plaintiff summary judgment on his Labor Law 200 claims.
Defendants' MACK, 145 Lessee, 145 OWNER, and 145 VENTURE Motion for Summary Judgment
Defendants MACK 145 LESSEE, 145 OWNER, and 145 VENTURE move to dismiss the entire complaint against them on the grounds that they did not own the premises nor were they involved in the project and, therefore, are not proper defendants.
Plaintiff does not oppose that portion of the motion that seeks dismissal of his claims against Defendants MACK 145 LESSEE, 145 OWNER, and 145 VENTURE.
Defendants HURON and NOBLE's, Motion to Dismiss Plaintiff's Complaint against them.
Defendants HURON and NOBLE move to dismiss Plaintiff' Labor Law 241(6) and 200 claims as against them. Defendants HURON and NOBLE make three arguments.
Their first argument is that NOBLE is not a proper Labor Law Defendant because it was a construction manager not a general contractor or owner's agent. However, it was NOBLE, not HURON, that contracted with the subcontractors, MONOLITHIC, GANE and POLMAR.
Further the Huron/Noble contract obligated NOBLE to supervise and inspect the work of all subcontractors and to maintain safety on the site, and authorized NOBLE to stop work on the site that was not in compliance with applicable laws, regulations and rules.
As NOBLE contracted with the various subcontractors and had authority to supervise the subcontractors and to halt their work, NOBLE functioned as a general contractor and owner's agent and is a proper Labor Law defendant.
HURON and NOBLE's second argument is that Plaintiff's 241(6) claim should be dismissed because he has not cited violation of an applicable Industrial Code section.
Plaintiff did cite Industrial Code section 23-1.7(b)(1)(i) which provides:
"Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule)."
Defendants HURON and NOBLE argue that this section is not applicable because it would have been "illogical" to cover the opening while materials were being moved through since it was integral to the plaintiff's work citing, Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134 (2011).
However, that case involved a situation where a worker fell in a trench in floor while in the process over pouring concrete over the entire floor including filling the trench. The Court held "[p]ut simply, it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete." Id. at 140.
Here, there is conflicting testimony from Plaintiff and Flores as to whether or not the POLMAR workers were using the opening in the floor to move material. Such issue of fact precludes granting Defendants summary judgment dismissing the 241(6) claim.
Defendants HURON and NOBLE's third argument is that Plaintiff's Labor Law 200 claim should be dismissed because they neither created nor had notice of the unprotected opening.
Defendant NOBLE submits the affidavit of Rick Farrell who was employee of NOBLE, in which he stated that on the day of the accident he conducted a walkthrough of the floor where the opening through which Plaintiff fell was located and he did not observe any uncovered openings in the floor or any improperly secured covers over openings in the floor. He further stated that after the accident he inspected the location and observed that a wooden cover had been dislodged and removed from the floor and that he did not observe this condition prior to the accident.
However, Farrell does not indicate how long before the accident he did his walk through, when the cover was removed from the opening, or whether any other employee of NOBLE saw the uncovered opening before the accident.
Defendant HURON submits the affidavit of RANDY TORRES in which he states that no one from Defendant MACK, walked the jobsite looking for unsafe conditions, however he does not state no one from Defendant HURON inspected the site.
He further states that no complaints were made to HURON about uncovered openings in the floor or improperly secured covers over openings in the floor, but does not state when HURON last inspected the area before the accident.
Defendants have not met their burden for summary judgment of showing that they did not have notice that the opening through which Plaintiff fell was not securely covered, which precludes dismissing Plaintiff's Labor Law 200 claim.
HURON and NOBLE's Motion for Summary Judgment on their Claims for Indemnification and Failure to Procure Insurance
Defendants HURON and NOBLE move that, in the event in the event that Plaintiff was granted summary judgment against them, they be granted summary judgment on their claims against Defendants MONOLITHIC, GANE and POLMAR for indemnification and for failure to procure insurance. As Plaintiff is not being granted summary judgment, that portion of their motion is moot.
Motion to Dismiss Cross Claims against HURON and NOBLE
Defendants GANE and POLMAR pled claims against Defendants HURON and NOBLE for common law indemnification. Defendant GANE also pled a claim for contractual indemnification against Defendants HURON and NOBLE.
The claims for common law indemnification against HURON and NOBLE should not be dismissed because, as discussed above, it has not yet been determined whether or not those defendants had notice of the unsecured covering or were negligent.
However, Defendant GANE's claim for contractual indemnification against Defendants HURON and NOBLE should be dismissed because the contract with Defendant GANE does not require HURON or NOBLE to indemnify GANE.
Defendant GANE's Motion to Dismiss
Defendant GANE cross-moves to dismiss Plaintiff's Complaint, the Third-Party Complaint, and all cross-claims as against it.
Defendant GANE argues that they were not present on the job site the day of Plaintiff's accident.
Defendant GANE submits a statement of facts that fails to provide citations to the record for its various assertions.
Defendant GANE submitted an affidavit from their bookkeeper, Kim Spinella. Spinella attests that GANE does not possess any records showing that any of its employees were on the site from October of 2016 until July 24, 2017. Defendant GANE does not attach the records on which Spinella based her affidavit. Defendant GANE submitted no other evidence to establish they were not working on the site on the date of the accident.
"[a]lthough '[t]he foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business' (Jerome Prince, Richardson on Evidence § 8-306 [Farrell 11th ed 1995]), it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Deutsche Bank v Dennis, 181 A.D.3d 864 at 869 [2nd Dept 2020]; Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197, at 205, [2nd Dept 2019].) "Accordingly, '[e]vidence of the contents of business records is admissible only where the records themselves are introduced" Id.
Further, the other parties have not had an opportunity to depose any witness from GANE.
For these reasons, Defendant GANE's motion to dismiss Plaintiff's Complaint, the Third-Party Complaint, and all cross-claims as against must be denied.
WHEREFORE, it is ORDERED that Plaintiff's motion for summary judgement is Denied; and it is further
ORDERED, that motion to dismiss the complaint as to Defendants MACK 145 LESSEE, 145 OWNER, and 145 VENTURE is Granted and the action is dismissed as to Defendants MP 145 WS LESSEE LLC, MP 145 WS OWNER LLC, and MP 145 WEST VENTURE LLC; and it is further, ORDERED, that that portion of Defendants HURON and NOBLE's motion to dismiss the complaint as against them is Denied; and it is further, ORDERED, that that portion of Defendants HURON and NOBLE's motion for summary judgment on their claims for indemnification and breach of contract for failure to procure insurance is Denied as moot; and it is further, ORDERED, that that portion of Defendants HURON and NOBLE's motion to dismiss Defendants GANE's and POLMAR's claims for common law indemnification is Denied; and it is further
ORDERED, that that portion of Defendants HURON and NOBLE's motion to dismiss Defendants GANE's claims for contractual indemnification is Granted; and it is further, ORDERED, that Defendant GANE's motion to dismiss Plaintiff's complaint, the Third-Party complaint and all cross claims is Denied.
This constitutes the decision and order of the Court.