Opinion
107388/05.
Decided on September 10, 2009.
Michael Healy, Callan Byrnes, LLP, NY, NY, Plaintiff.
Jeffrey S. Shein Assoc, P.C., Syosset, NY, TBTA.
Torino Bernstein, P.C., Mineola, NY, Grace.
Plaintiff Jennifer Mosca (Mosca" or plaintiff") claims she sustained personal injuries proximately caused by defendant Triborough Bridge and Tunnel Authority's (TBTA") violation of various Industrial Code provisions (Labor Law § 241") and TBTA's negligence (common law negligence and Labor Law § 200). Although plaintiff also asserted a cause of action under Labor Law § 240 (1), she has since withdrawn that claim with prejudice. Stipulation 12/15/08.
The TBTA has commenced a third party action against Grace Industries, Inc./ El Sol Contracting Construction Corporation, a joint venture (sometimes Grace" or the joint venture") and a fourth party action against El Sol Contracting Construction Corporation (El Sol").
El Sol is separately represented in the 4th party action
Issue has been joined and good cause having been shown, the court granted defendants' motion for an extension of the time to move for summary judgment until December 22, 2008. Order, Gische J., 9/25/09. The summary judgment motions by TBTA, Grace and El Sol were timely made within that deadline and they will be decided on the merits. The motions are consolidated herein for decision in a single decision/order which is as follows:
Brief summary of the motions
Mosca was a journeyman employed by Grace. She was injured while working on a construction project at the Triborough Bridge, now known as the RFK Bridge." The TBTA is the owner of the bridge and the joint venture was TBTA's contractor on this project. The TBTA has moved for summary judgment. Grace and El Sol join in TBTA's motion for summary judgment dismissing Mosca's complaint against TBTA. All three movants (collectively defendants") maintain that there were no violations of the Industrial Code regulations and the TBTA was not negligent. They argue that even assuming Mosca can prove all her facts, she was still injured while in the process of clearing the very condition she was instructed to clear, to wit: a pile of concrete rubble that she had mounded up so it could be hauled away. They claim that there is no liability under such circumstances. The defendants further deny that the TBTA was negligent, because it was Mosca's foreman who instructed her on how to do her job, and TBTA did not supervise her work, create the dangerous condition or have notice of it. Mosca opposes the motions, arguing the Industrial Code regulations she relies upon apply, and there are triable issues of fact, including whether the TBTA supervised the work,
TBTA has also moved for summary judgment on its claim for contractual indemnification from Grace and El Sol. Grace argues that TBTA's motion is premature, and cannot be decided until the issue of TBTA's negligence is resolved. El Sol, however, separately argues that the contract provision TBTA relies upon violates the General Obligations Law and is void, as a matter of public policy.
Arguments Presented
On June 3, 2004, the day of the accident, Mosca was employed by Grace as a journeyman. Grace had a contract with TBTA to do roadway repair on the Triborough bridge (contract"). The project entailed (among other things) the resurfacing of the toll lanes. This resurfacing required that Grace employees, known as drill runners," jack hammer the concrete surface of these lanes. The broken up concrete they created then had to be cleared away by other employees of Grace. Mosca was one of the employees assigned to do that job.
Mosca was deposed by the defendants (JM EBT p.___"). She testified at her deposition that her foreman, Kevin Quattrock (Quattrock"), instructed her to gather up the broken concrete in Lane 13. Quattrock is also a Grace employee. According to Mosca, she was instructed to use a shovel and her hands to gather up all the debris so a pay loader could haul it away. Her employer provided her with the shovel and gloves. As the concrete surface was jack hammered, the underlying steel reinforcement rods installed in the concrete (also known as rebar") were exposed. According to plaintiff, this left a checker board like appearance to the ground where she was working. Sometimes she stepped on the rebar to get around. At other times she would step up on the piles of concrete she was making. Some piles were shallow, reaching only her ankle, but she made some other piles that were taller, reaching a height of 18 to 24 inches tall.
Mosca was standing midway in one of the piles, approximately 9 — 12 inches off the ground, and in the process of lifting her shovel with pieces of concrete in it, when she felt the pile shift. When the pile shifted, she lost her balance, her legs buckled from under her and she fell down. The driver of one of the dump trucks who witnessed the accident (Patrick Caggiano) picked the plaintiff up and carried her away. This driver was also employed by Grace.
Defendants contend that Industrial Code regulations 12 NYCRR 23-3.3 (c), 12 NYCRR 23-3.3 (l), and 12 NYCRR 23-4.1 (a) and other sections relied upon by plaintiff do not apply to the facts of this case because they set forth safety standards for structures" like buildings, walls and foundations that have to braced or shored against collapsing, buckling or toppling over. They contend plaintiff was not working on a structure within the meaning of these safety regulations.
12 NYCRR 23-3.3 and its subparts pertain to areas where hand demolition is taking place. The sections plaintiff relies upon and other relevant sections provide as follows:
Section 23-3.3. Demolition By Hand
(a) Application. The provisions of this section shall not apply to mechanical means of demolition.
(b) Demolition of walls and partitions.
(1) The demolition of walls and partitions shall proceed in a systematic manner and all demolition work above each tier of floor beams shall be completed before any demolition work is performed on the supports of such floor beams.
[***]
(c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.
[***]
(l) Safe footing required. Any person working above the first floor or ground level in the demolition of any building or other structure shall not be suffered or permitted to use accumulated debris or piled materials as a footing in the performance of his work. Every person shall be provided with safe footing consisting of sound flooring, planking not less than two inches thick full size, adequately supported exterior grade plywood at least three-quarters inch thick or other material of equivalent strength."
12 NYCRR 23-4.1 and its subparts apply to evacuation operations. This regulation provides as follows:
Section 23-4.1. General Requirements
(a) Stability of structures. Except in hard rock, whenever any excavation is to be performed in the vicinity of buildings, structures or utilities, the integrity, stability and structural adequacy of such buildings, structures or utilities shall be maintained at all times by the use of underpinning, sheet piling, bracing or other equivalent means to prevent damage to or failure of foundations, walls, supports or utility facilities and to prevent injury to any person. Such underpinning, sheet piling, bracing or equivalent means shall be inspected at least once each day or more often if conditions warrant. Every such inspection shall be conducted by an experienced, designated person."
Defendants argue that although 12 NYCRR 23-3.3 applies to demolition by hand," Mosca was not herself engaged in demolition," (i.e. jack hammering or drilling) but clearing away its by-product. They argue that subparts 23-3.3 (c) and 23-3.3 (l) were not violated because although there was broken up concrete on the ground, this is not loosened material" within the meaning of the regulation, because it did not come from any structure, like a building and Mosca was not using it to stand on like a scaffold. Defendants argue it would have been impossible to keep the area where Mosca was working completely free of any broken up material, like concrete, debris, rubble, etc., because she was working side by side with the drill runners, and her job was to remove the debris. Thus, the condition she complains of was the very condition she was instructed to clear and an integral part of her job. Applying similar arguments, defendants argue that the pile of concrete or rubble is not a structure" within the meaning of 12 NYCRR 23-4.1 (a) that had to be shored up or braced.
Defendants deny that 12 NYCRR 23-3.3 (c) governing inspections applies to the facts of this case, arguing that such inspections are to safeguard against hazards created by the demolition project itself, not its aftermath or cleanup. Alternatively, they argue that the TBTA and its site safety manager, non-party LiRo inspected the area and found it safe. The defendants maintain that no complaints were made to TBTA about safety in the drilling project.
The defendants argue that there is no factual basis for Mosca's Labor Law § 200 or common law negligence claims against the TBTA because the TBTA did not supervise her work or give her instructions or directions on how to perform it. The defendants contend that TBTA did not have notice of a dangerous condition or create it. They rely on plaintiff's testimony, that she took all her instructions and directions from her foreman (Quattrock). When asked whether anyone from TBTA instructed her on what to do, Mosca responded never." JM EBT p. 43. According to Mosca, her employer (Grace) provided her with whatever equipment they thought she needed to do her job.
Defendants also rely on Quattrock's deposition testimony. He was present on the day of the accident but he did not see it happen. Quattrock testified that he had worked on a number of projects (20-25) involving the TBTA and Grace. According to Quattrock, the TBTA monitored the overall progress of the Triborough project and even held a pre-construction meeting to discuss the work in general. However, according to Quattrock, the TBTA left the details of how the work would be done up to Grace
Kenrick Lewis (Lewis") was deposed on behalf of the TBTA (KL EBT p. __"). Lewis was the TBTA's facilities liaison. Lewis made sure that lanes were closed off so the workers could do their jobs safely and that no one was working in an area that was unsafe. Although he was also present on the day of the accident, he did not see it happen either. Lewis testified that he was not in charge of inspecting the work being done, but simply monitored it to see if anything looked dangerous. He also testified that if he did observe a dangerous condition, the first step would be to bring it to the attention of the foreman, with the expectation that s/he would take care of the problem. If this did not happen, then Lewis had the right to stop the work he considered unsafe. According to Lewis (and Quattrock), LiRo also had this right and LiRo was supposed to notify him if such a condition arose because he was the facilities liaison. KL EBT p. 63. At the time of the accident, LiRo had an inspector at the tollbooth plaza. This inspector, Anthony Labarbara, actually worked for another company, nonparty Ensign. Ensign generated daily reports and he was supposed to observe the work done by Quattrock and his crew. KL EBT p. 66, 68.
Lewis testified although he could stop any work that was dangerous, he personally did not observe any such condition that day, nothing was brought to his attention, no complaints were made, and he did not see any piles he thought were dangerous.
In opposition to these motions, Mosca first argues that she was, in fact, working on a demolition project, and that the pile of concrete was loosened material" from that project. She denies she had any safe place to stand, and therefore, the TBTA also violated the safe footing requirement of 12 NYCRR 23-3.3 (l). According to Mosca, no one inspected the area where she was working, and had they done so, they would have seen the conditions under which she was working. Mosca provides the sworn affidavit of Kathleen Hopkins, a licensed Certified Site Safety Manager (Hopkins"). Although Hopkins did not inspect the bridge or toll both lanes, she reviewed various documents and deposition transcripts. Hopkins opines that Mosca should have been provided with planks or plywood so she could have stood on the rebar while cleaning up instead of on the piles she was making and that a Bobcat should have been used to pick up the debris instead having a worker first pile up the material to then be hauled away.
Hopkins opines that the broken up concrete is loosened material" within the meaning of the safety regulations, stating that I don't know what jack hammered demolished concrete would be called other [wise]." She opines that the failure to recognize the piles of concrete as a hazard is proof that the inspector was not a competent and qualified person."
In reply, defendants object to having Hopkins' sworn affidavit considered by the court because she was not disclosed in response to the TBTA's demands for expert disclosure, nor was Hopkins identified before plaintiff filed her note of issue. Alternatively, defendants argue that Hopkins has failed to raise issues of fact because her opinion lacks sufficient foundation, it is speculative, and invades the province of the court.
Applicable Law
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). A party may not defeat a motion for summary judgment with bare allegations of unsubstantiated facts. Zuckerman v. City of New York, supra at 563-64. 562 (1980). Only if this burden is met, will it then shift to the opposing party who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra.
When an issue of law is raised in connection with a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing. See: Hindes v. Weisz, 303 AD2d 459 (2nd Dept 2003).
Discussion
Labor Law § 241 (6)
Labor Law § 241 (6) imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. Comes v. New York State Electric Gas Co., 82 NY2d 876 (1993); Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 (1998); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 (1993). To properly state a claim under Labor Law § 241(6), the plaintiff must identify a specific and applicable Industrial Code provision that has been violated. Ross v. Curtis-Palmer Hydro-Elec. Co., supra. The question of whether the plaintiff has alleged a specific provision of the Industrial Code, and whether the condition alleged is within the scope of the Industrial Code regulation, usually presents a legal issue for the court to decide. Messina v. City of New York, 30 AD2d 121 (1st Dept 2002).
Mosca's Labor Law § 241 (6) claim fails for a number of reasons. First, Mosca was injured because she was standing on top of a pile she herself created as part of the work she was instructed to do and the condition she was instructed to clear. Gaisor v.Gregory Madison Avenue, LLC , 13 AD3d 58 (1st Dept 2004). Mosca was not jack hammering the concrete, but clearing it. She did this by making small piles and then combining small piles into bigger ones that were then hauled away. The pile was an unavoidable and inherent result of the work she was doing. Harris v.Rochester Gas Electric Corp. , 11 AD3d 1032 (4th Dept 2004); Salinas v. Barney SkanskaConstruction Co. , 2 AD3d 619, 622 (2nd Dept 2003);also, Solis v. 32 Sixth Avenue Company, LLC , 38 AD3d 389, 390 (1st Dept 2007) ( although plaintiff not doing demolition" work, the debris was integral part of his work anyway). Therefore, since the pile was an integral part of her work, the debris underfoot is not a code violation.
The Industrial Code regulations that plaintiff relies upon set forth safety measures owners and contractors must follow where the structural integrity of buildings" and other structures" is being affected. Salinas v. Barney Skanska Construction Co., supra. For example, 12 NYCRR 23-4.1 (a) which pertains to structures" requires that structures be stabilized by underpinnings, sheet piling, bracing or their equivalents. Balladares v. Southgate Owners Corp. , 40 AD3d 667 (2nd Dept 2007). The purpose of these code regulations is to protect against the collapse of a structure associated with a loss of stability.
Plaintiff was not working on a project that required the dismantling or razing of a building or structure. Salinas v. Barney Skanska Construction Co., supra; also, Solis v. 32 Sixth Avenue Company, LLC, supra. The roadbed surface of the toll lane was being jack hammered away so it could be refaced. Although plaintiff argues the bridge is itself a structure," the work being done was superficial or topical, and Mosca was simply gathering up the debris left behind by her fellow workers so it could then be hauled away. The argument that the pile had to be shored" up is offered without any explanation.
Nor was Mosca standing above ground level," within the meaning of the Industrial Code regulation requiring that a laborer be provided with sound flooring." Mosca was not using the pile of broken up concrete as a substitute for a scaffold, but stepping on and off the piles to get around the area she was clearing. Harris v.Rochester Gas Electric, Corp. , 11 AD3d 1032, 1033 (4th Dept 2004).
Although 12 NYCRR 23-3.3(c) requires ongoing inspections where demolition work is being performed ( Salinas v. Barney Skanska Const. Co., supra.), this is to safeguard against the hazards which are created by the progress of the demolition work, not how the demolition work is being done (Campoverde v.Bruckner Plaza Assoc, L.P. , 50 AD3d 836 [2nd Dept 2008]). Looking at the safeguards required to protect against such hazards (shoring, bracing or other effective means") shows that this section does not apply to the facts of this case either, given the work that was being done.
Although plaintiff originally identified other regulations she believes were violated, not only has she apparently abandoned them on this motion, but TBTA has nevertheless proved they are either too general to support a Labor Law § 241 (6) claim, or they do not apply to the facts of this case. Thus, 12 NYCRR 23-1.5 is a general safety requirement (Sajid v. Tribeca North Associates L.P., 20 AD3d 301 [1st Dept 2005]), 12 NYCRR 23-1.7 and its subparts pertains to overhead, falling, tripping and other hazards. However, the hazard underfoot, as has been already addressed, was an inherent hazard of the work plaintiff was instructed to do, and therefore these sections are not a predicate basis for her Labor Law § 241 (6) claim.
Plaintiff also claims that various OSHA regulations were violated. However, alleged violations of OSHA regulations are not predicates for a Labor Law § 241 (6) claim. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 350 (1998).
Although defendants have argued that the court should not consider Hopkins's sworn affidavit because plaintiff did not disclose her before filing the note of issue (Colon v. Chelsea PiersManagement, Inc. , 50 AD3d 616 [2nd Dept 2008]), the affidavit presents conclusions without any factual basis. Thus, whether Hopkins was timely disclosed or not, the affidavit is insufficient to raise a triable issue of fact
Based upon the foregoing, defendants' motion, for summary judgment, dismissing plaintiff's Labor Law § 241 (6) claim against the TBTA claim is granted.
Labor Law § 200
Labor Law § 200 codifies the common law duty imposed upon an owner or general contractor to maintain a safe construction site. Rizzuto v. L.A. Wenger Contracting Co., 91 NY2d 343 (1998). Where such a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had, unless it is shown that the party to be charged exercised some supervisory control over the operation. Ross v. Curtis-Palmer Hydro-Electric Co., supra. Since defendants have moved for summary judgment on this cause of action, this must prove they did not exercise supervision and control over injury producing work, or have actual or constructive notice of the dangerous condition alleged, or create the condition. Sheridan v. Beaver Tower Inc., 229 AD2d 302 (1st Dept. 1996) lv den 89 NY2d 860 (1996); O'Sullivan v. IDI ConstructionCo., Inc. , 28 AD3d 225 aff'd 7 NY3d 805 (2006); Rizzuto v. L.A. Wenger Contracting Co., supra; Gonzalez v. United Parcel Serv., 249 AD2d 210 (1st Dept. 1998).
TBTA has established, and Grace agrees, that the TBTA did not supervise, instruct, or control how Grace or its employees, including Mosca, did their jobs. The equipment that Mosca used was provided to her by her employer and it was her foreman who told her what to do and how to do it. Mosca did not complain to anyone that she felt unsafe doing her assignment. Furthermore, the dangerous condition Mosca contends existed was part of the job she was instructed to do.
Although the TBTA monitored the work site and Lewis was present on the day of the accident, he testified he did not see a dangerous condition, no one complained to him about a dangerous condition, and the dangerous condition that Mosca claims existed was an essential part of the work she was doing. There is no evidence that TBTA created the dangerous condition, or that it directed Grace how to do its job. Mosca has testified she had no contact with anyone from TBTA other than to ask them if they wanted coffee.
Simply having a general right to supervise the work, or retaining contractual inspection privileges is insufficient to constitute supervisory control so as to impose liability on an owner or general contractor under Labor Law § 200 or a common law negligence claim.Hughes v. Tishman Construction Corp. , 40 AD3d 305 (1st Dept 2007); Brown v. New York City Economic Dev. Corp., 234 AD2d 33 (1st dept. 1996); Gonzalez v. United Parcel Serv., supra. Mosca has failed to raise triable issues of fact that to defeat the motion by the TBTA. Therefore, the motion by the defendants for summary judgment dismissing the complaint is granted and Mosca's Labor Law § 200 is dismissed.
Contractual Indemnification
The TBTA seeks summary judgment on its third and fourth party claims for contractual indemnification claims against Grace and El Sol.
GOL § 5-322.1 prohibits indemnification contracts purporting to indemnify an indemnitee for its own negligence. Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 NY2d 786 (1997). El Sol argues that the indemnification provision in the joint venture's contract with the TBTA violates the statute because the joint venture (and El Sol) has to indemnify the TBTA, even if the TBTA is found to be partially at fault in the happening of plaintiff's accident.
The indemnification provisions provides as follows:
ARTICLE 6.03 INDEMNIFICATION:
(a)The Contractor shall indemnify and save harmless the Indemnified Parties to the fullest extent permitted by law, from loss and liability upon any and all claims and expenses, including but not limited to attorneys' fees, on account of such injuries to persons . . . irrespective of the actual cause of the accident, irrespective of whether it shall have been due in part to [the] negligence of the Contractor or its subcontractors or negligence of the Indemnified Party, or of any other persons, but excepting bodily injuries and property damage to the extent caused by the negligence of the Authority [TBTA]."
The phrase "to the fullest extent permitted by law" has been held by the Court of Appeals to be a limitation on a promisor's indemnification obligation. Brooks v. Judlau Contracting,Inc. , 11 NY3d 204 (2008). Moreover, the indemnity provision excludes or excepts bodily injuries caused by the negligence of the Authority [TBTA]" Thus, under this provision, even a promisee that is partially at fault can seek indemnification against the promisor for that portion of damages attributable to the negligence of the promissory. Brooks v. Judlau Contracting, Inc., supra.
Here, plaintiff's complaint against the TBTA has been dismissed in its entirety. The court has determined that the TBTA did not violate the Industrial Code regulations alleged and the TBTA is free negligence (whether Labor Law § 200 or common law). Since the indemnification provision does not violate the statute, and the TBTA is not negligent, the TBTA can enforce the contractual indemnification provision against its contractor and subcontractors. The TBTA has proved it is entitled to summary judgment against the joint venture and El Sol. Neither defendant has raised issues of fact that have to tried. Therefore, TBTA's motion for summary judgment on its for indemnification claims against the joint venture and El Sol for attorney's fees and defense costs in connection with this action is granted.
Conclusion
The motions by the TBTA, Grace (joint venture) and El Sol for summary judgment dismissing the plaintiff's claims against the TBTA are granted. Since Mosca has already withdrawn her Labor Law § 240 (1) claim, plaintiff's complaint against the TBTA is dismissed in its entirety.
The TBTA's motion for summary judgment against Grace (the joint venture) and El Sol for contractual indemnification is granted. The 4th cause of action in the third party and fourth party complaints (legal fees and defense costs) are hereby scheduled for hearing before a Special Referee who will make recommendations to the court about the reasonable fees that TBTA may recover from Grace and El Sol. This order shall be served on the Office of the Special Referee, 60 Centre Street, Room 119 so the reference can be scheduled.
TBTA's failure to serve a copy of this order within Sixty (60) Days of the date of entry of this decision/order shall be deemed to be a waiver of such hearing.
Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.
This constitutes the decision and order of the court.