Opinion
Index No. 511354/2018 MS 13-16
10-12-2023
PEDRO PABLO PESANTEZ, Plaintiff, v. 650 MET PARTNERS LLC, ASTRAL WEEKS LLC a/k/a ASTRAL WEEKS DEVELOPMENT LLC, COUNTYWIDE BUILDERS INC., KLEENOH GROUP LLC, GOTHAM STRUCTURES NY LLC, COUNTY ELECTRICAL CONTRACTOR INC., TOP EASTERN IRON WORK INC. and AGRA MASONRY, INC. Defendants.
Unpublished Opinion
PRESENT: HON. DEBRA SILBER, JUSTICE
DECISION/ORDER
DEBRA SILBER, JUDGE
| The following e-filed papers read herein: | NYSCEF Nos.: |
| Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed ____ | 408-461, 329-369, 370- 406, 476-515 |
| Opposing Affidavits (Affirmations)____ | 523-526, 527-550, 551- 562, 573-594 |
| Affidavits/ Affirmations in Reply____ | 559-600, 601, 602, 603- 608, 609-612 |
At an IAS Term, Part 9 of the Supreme Court of the State of New York, held in and for the County Electric of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 12th day of October, 2023.
Upon the foregoing papers:
(1) defendants 650 Met Partners, LLC (650 Met) and Astral Weeks LLC a/k/a Astral Weeks Development LLC (Astral) move, in motion (mot.) sequence (seq.) 13, for an order awarding them summary judgment dismissing plaintiff Pedro Pablo Pesantez's (plaintiff) complaint against Astral. 650 Met and Astral further move for summary judgment dismissing plaintiff's common-law negligence, Labor Law §§ 200, 240 (1), and 241-a claims against 650 Met. In addition, 650 Met and Astral move for summary judgment dismissing plaintiff's § 241 (6) claim against 650 Met except to the extent that he relies on New York State Industrial Code regulation 12 NYCRR §23-1.7 (d). Further, 650 Met and Astral move for summary judgment under their contractual indemnification claims against defendants Countywide Builders Inc. (Countywide), Kleenoh Group LLC (Kleenoh) and County Electrical Contractor Inc. (County Electric). 650 Met and Astral also move for summary judgment under their breach of contract to procure liability insurance claims against Kleenoh and County Electric. Finally, 650 Met and Astral move for summary judgment dismissing all counterclaims and cross claims asserted against them;
(2) Countywide moves, in mot. seq. 14, for summary judgment dismissing plaintiff's complaint and any cross claims asserted against it. In the alternative, Countywide moves for summary judgment under its contractual indemnification claims against Kleenoh and County Electric;
(3) Kleenoh moves, in mot. seq. 15, for summary judgment dismissing plaintiff's complaint against it;
(4) County Electric cross-moves, in mot. seq. 16, for summary judgment dismissing plaintiff's complaint and all third-party claims and cross claims asserted against it.
Background Facts and Procedural History
The instant action arises out of an alleged slip and fall accident that took place on March 29, 2018, during the construction of a new seven-story apartment building located at 195 Clarkson Avenue in Brooklyn, New York (the building). Prior to the accident, 650 Met, which owned the building, hired Countywide to serve as the general contractor/construction manager for the construction phase of the project. Thereafter, Countywide hired various subcontractors including County Electric, which was retained to perform electrical work, and non-party CMG Improvements Inc. (CMG), which was hired to perform carpentry work. CMG subsequently hired plaintiff's employer, Vargas Construction (Vargas), to perform some of the carpentry work. Countywide also hired Kleenoh to perform cleaning services at the jobsite.
The court notes that there is evidence in the record contradicting plaintiff's claim that he was injured in a slip and fall accident. However, as plaintiff is the party opposing the instant summary judgment motions, the court must accept the evidence supporting plaintiff's claim that he was injured after he slipped and fell on the stairs as being true (Aguilar v City of New York, 162 A.D.3d 601 [2018]).
Both Countywide and Kleenoh's witnesses testified at their depositions that Kleenoh was hired by Countywide to perform cleaning services. However, no written contract between these parties has been submitted. However, a contract between Kleenoh and 650 Met has been submitted in which Kleenoh agreed to indemnify 650 Met and procure insurance listing 650 Met as an additional insured.
Prior to the accident, plaintiff performed carpentry work on the building for approximately four to five weeks. Thereafter, he worked at other jobsites for Vargas before returning to work on the building in or about March, 2018. According to plaintiff's deposition testimony, he received his instructions from foremen employed by Vargas which were translated to him by his coworker, Freddie Pinas. Plaintiff also testified that he occasionally received instructions from Vargas' owner, Edgar Vargas. On the day of the accident, plaintiff arrived at the building jobsite at approximately 6:40 a.m. According to plaintiff, after arriving at the site, he was instructed by Mr. Pinas to retrieve certain items, described as metal ceiling channels, from the fourth floor of the building and bring them down to the third floor of the building. Thereafter, plaintiff ascended a permanent concrete staircase in the interior of the building in order to get to the fourth floor of the building. Plaintiff testified that the accident occurred as he was carrying the ceiling channels down the staircase from the fourth floor to the third floor of the building. In particular, plaintiff claimed that, as he was walking down the stairs, he slipped and fell on water that had accumulated on the stairs. Plaintiff further testified that the stairway lacked handrails and that there was nothing for him to grab onto when he began to fall. When asked if he knew where the water came from, plaintiff testified that the stairway was exposed to the elements and the stairs got wet when it rained. In addition, plaintiff testified that other contractors had been mixing concrete in the floors above where the accident occurred, which would cause water to drip onto the stairway. Furthermore, plaintiff testified that the lighting in the stairway was poor and that it was difficult to see. Finally, plaintiff testified that the water on the stairway was a chronic/ongoing condition and that he had complained to Mr. Pinas about this, as well as the lack of adequate lighting in the stairway, prior to the accident.
By summons and complaint dated June 1, 2018, plaintiff commenced the instant action against 650 Met, Astral, and Countywide alleging that his injuries were caused by their negligence as well as their violation of Labor Law §§ 200, 240 (1), 241(6), and 241-a. In support of his Labor Law § 241 (6) claim, plaintiff alleged violations of various New York State Industrial Code provisions, specifically, §§ 12 NYCRR 23-1.5, 1.7(b)(d) and (e), 1.8(c)(1), 2.1(a) and (b), 2.7(a)-(e), 3.3(e)(f) and (g), 1.15 (a)-(e) and 1.30.
After being served with the summons and complaint, five separate third-party actions were commenced by 650 Met, Astral, and Countywide seeking various relief including contractual indemnification and damages for breach of contract to procure liability insurance. In particular, on March 13, 2019, Countywide commenced a third-party action against CMG and Vargas. On April 16, 2019, 650 Met and Astral brought a (second) third-party action against CMG and Vargas. On March 4, 2020, Countywide commenced a (third) third-party action against Kleenoh, County Electric, defendant Gotham Structures NY LLC (Gotham), and defendant Top Eastern Iron Work, Inc. (Eastern). On March 5, 2020, 650 Met and Astral commenced a (fourth) third-party action against Kleenoh, County Electric, Gotham, and Eastern. Finally, on November 23, 2020, Countywide brought a (fifth) third-party action against defendant Agra Masonry, Inc. (Agra). In orders dated November 13, 2020 [Doc 76] and January 7, 2021 [Doc 98], the court awarded Countywide, 650 Met and Astral default judgments on their third-party claims against Vargas and CMG. In an order dated April 12, 2021 [Doc 201], the court awarded Countywide a default judgment under its third-party claims against Kleenoh, Gotham, County Electric, Eastern and Agra. However, Countywide, subsequently entered into stipulations to vacate the default judgments against Kleenoh and County Electric.
On March 25, 2021, plaintiff commenced a second action against various defendants including Kleenoh and County Electric by filing a second summons and complaint under Kings County Index No. 507112/21. As was the case with the original complaint, the second complaint asserted causes of action sounding in common-law negligence and Labor Law §§ 200, 240 (1), 241 (6), and 241-a. In an order dated April 12, 2021 [Doc 200], the court granted plaintiff's cross motion to sever the five third-party actions and directed that the third-party plaintiffs purchase new index numbers for these actions within 30 days. On May 10, 2021, Countywide filed its severed third-party claims under Kings County Index No. 511006/2021. On May 17, 2021, 650 Met and Astral filed its severed third-party claims under Kings County Index No. 511604/2021. In an order dated June 22, 2021 [Doc 264], the court denied 650 Met and Astral's motion to reargue the order severing the third-party actions. In an order dated May 24, 2021, the court consolidated for all purposes the plaintiff's first and second actions under Kings County Index No. 511354/2018.
On December 22, 2021, plaintiff filed a note of issue and certificate of readiness. These motions followed.
Plaintiff's Labor Law §§ 240 (1) and 241-a Claims
All of the moving defendants move to dismiss plaintiff's Labor Law § 240 (1) claim. In so-moving, the defendants maintain that the accident, which allegedly involved plaintiff slipping and falling on a permanent stairway, is not covered under this statute. Plaintiff does not oppose this branch of the moving defendants' motions. To the contrary, in his oral argument, plaintiff's counsel conceded that Labor Law § 240 (1) is inapplicable in this case. Accordingly, those branches of 650 Met, Astral, Kleenoh, and County Electric's motions which seek summary judgment dismissing this cause of action are granted without opposition.
650 Met and Astral also move for summary judgment dismissing plaintiff's Labor Law § 240-a cause of action. In support of this branch of their motion, 650 Met and Astral maintain that this statute is inapplicable given the circumstances of the accident. Plaintiff has not submitted any opposition to this branch of 650 Met and Astral's motion.
Labor Law § 240-a requires that planking be laid not more than two stories above and not more than one story below individuals working in elevator shaftways, hatchways and stairwells. The purpose of the statute is to protect workers from being struck by falling objects while in shaftways, hatchways and stairwells and to prevent them from falling more than one story while in shaftways, hatchways and stairwells. Thus, this provision is inapplicable in this case since plaintiff was not struck by a falling object and did not fall down a shaftway, hatchway, or stairwell. Accordingly, that branch of 650 Met and Astral's motion which seeks summary judgment dismissing plaintiff's Labor Law § 240-a claim is granted.
Remaining Claims Against Astral
650 Met and Astral move to dismiss all of plaintiff's remaining claims against Astral including plaintiff's Labor Law §§ 241 (6), 200, and common-law negligence claims. In the motion, 650 Met and Astral maintain that Astral is not subject to liability under these provisions since Astral did not own the building or contract for the work to be performed. In support of this argument, 650 Met and Astral point to the deposition testimony of Tim Holderbaum, Astral's Director of Operations. In particular, 650 Met and Astral note that Mr. Holderbaum testified that Astral was 650 Met's manager and that 650 Met held title to the building. 650 Met and Astral also point out that Mr. Holderbaum testified that 650 Met hired Countywide to serve as the general contractor/construction manager on the project and that there was no contractual relationship between Astral and Countywide or Astral and any of the subcontractors who performed work on the project. Finally, 650 Met and Astral submit a copy of the contract between 650 Met and Countywide whereby Countywide was retained to serve as the general contractor/construction manager on the project.
"It is well established that an owner in fee will be held liable [under the Labor Law] even when it had no control over and did not benefit from the work performed on its land" (Grindley v Town of Eastchester, 213 A.D.2d 448, 449 [1995]). Further, a party may be deemed an owner for purposes of the Labor Law without holding title when it contracts for the work to be performed that would exclusively benefit its property (id., at 449, Addonisio v City of New York, 112 A.D.3d 554, 555 [2013]). Here, Mr. Holderbaum testified that 650 Met, not Astral, held title to the building. Further, there is no evidence in the record contradicting this testimony. In addition, the evidence before the court, including the general contract and subcontract agreements, demonstrates that Astral did not hire any of the entities that performed work on the project. Thus, there is no basis for plaintiff's Labor Law or common-law negligence claims against Astral and that portion of 650 Met and Astral's motion which seeks summary judgment dismissing these claims against Astral is granted.
Plaintiff's Remaining Claims Against Kleenoh
The court has already determined that there is no basis for plaintiff's Labor Law § 240 (1) claim against Kleenoh or the other moving defendants. Kleenoh also moves for summary judgment dismissing all of plaintiff's remaining claims against it. In support of this branch of its motion (#15), Kleenoh points to the fact that it was merely a subcontractor on the underlying construction project and was hired by Countywide to perform cleaning services. Kleenoh further notes that it had no control over the carpentry work performed by plaintiff and that there was no privity between it and plaintiff's employer Vargas. Accordingly, Kleenoh maintains that it is not subject to liability under the Labor Law since it was not an owner, contractor, or statutory agent with respect to the work plaintiff was carrying out at the time of the alleged accident.
Kleenoh also argues that plaintiff's common-law negligence claim against it must be dismissed since it was merely a contractor hired by Countywide that did not owe a duty of care to plaintiff or other third-parties pursuant to the Court of Appeals' ruling in Espinal v Melville Snow Contractors, 998 N.Y.2d 222 [2001]). In particular, Kleenoh contends that it did not affirmatively create or exacerbate any of the conditions that allegedly caused the accident. Further, Kleenoh avers that plaintiff did not detrimentally rely upon Kleenoh's performance of services under Kleenoh's contract since plaintiff testified that he had never heard of Kleenoh. Finally, Kleenoh contends that it did not completely assume or displace the property owner's duty to maintain the premises. Thus, Kleenoh maintains that it did not owe plaintiff a duty of care with respect to the allegedly wet staircase or any other condition that might have caused the accident.
In opposition to Kleenoh's motion to dismiss plaintiff's remaining claims against it, plaintiff maintains that Kleenoh had the duty to inspect, observe, and remove the water and any other safety hazards on the stairway. In support of this contention, plaintiff points to the deposition testimony of Countywide member, Mayer Weber, as well as Kleenoh's employee Desmond Williams, both of whom testified that Kleenoh was responsible for keeping the stairway area clean. In addition, plaintiff argues that the Court of Appeals' ruling in Espinal has no application to his Labor Law § 241 (6) and 200 claims.
Countywide also opposes Kleenoh's motion for summary judgment dismissing plaintiff's Labor Law and negligence claims against it. In particular, Countywide argues that it is clear from Mr. Williams' testimony that Kleenoh had authority and control over the cleaning and maintenance of the stairway area and is therefore subject to liability under the Labor Law. In addition, Countywide argues that there are issues of fact as to whether or not Kleenoh entirely displaced the owner's obligation to maintain the jobsite in a safe manner. Further, Countywide maintains that there is an issue of fact as to whether or not Kleenoh unleashed the instrument of harm that caused the accident by tracking water into the stairway area during its cleaning operations.
It is well-settled law that only owners, general contractors, and their agents are subject to liability under Labor Law §§ 241 (6), and 200 (see Russin v Louis N. Picciano & Son, 54 N.Y.2d 311 [1981]). Here, as noted above, Kleenoh was a subcontractor hired by Countywide to perform cleaning services on the project. Thus, Kleenoh was not an owner or general contractor and may only be held liable for plaintiff's injuries under the Labor Law if it qualifies as an agent under the statutes. A subcontractor such as Kleenoh is only subject to liability as an agent under the Labor Law if it had the authority to supervise and control the work that the plaintiff was engaged in at the time he was injured or to have controlled and supervised the work that caused the injuries (see Rohr v Dewald, 162 A.D.3d 1528, 1529-1530 [2018]; Poracki v St. Mary's Roman Catholic Church, 82 A.D.3d 1192, 1195 [2011]; Kelarakos v Massapequa Water Dist., 38 A.D.3d 717, 718 [2007]; Coque v Wildflower Estates Dev., Inc., 31 A.D.3d 484, 488 [2006]; Urbina v 26 Court St. Assoc., 12 A.D.3d 225, 226 [2004]; Lopes v Interstate Concrete, 293 A.D.2d 579, 580 [2002]). Absent the authority to supervise and control the work, a subcontractor is not subject to liability under the Labor Law even if there is evidence that the subcontractor's negligence was a proximate cause of the accident (see Poracki, 82 N.Y.3d at 1195; Urbina, 12 A.D.3d at 226; Lopes, 293 A.D.3d at 580).
Here, it is clear from plaintiff's own deposition testimony that Kleenoh, which was merely a cleaning subcontractor, did not have any authority to control or supervise plaintiff's work as a carpenter at the time of the accident. Further, to the extent that the allegedly wet condition on the stairway was caused by workers mixing concrete on a floor above the stairway, Kleenoh did not have any authority to supervise or control that work. In this regard, Kleenoh's employee Desmond Williams testified that Kleenoh's responsibilities were limited to cleaning work. Accordingly, there is no basis for plaintiff's Labor Law § 241 (6) and 200 claims against Kleenoh, and that branch of Kleenoh's motion which seeks summary judgment dismissing these claims is granted.
The court next turns to plaintiff's common-law negligence claim against Kleenoh. It is noted that even when a subcontractor is not subject to liability under the Labor Law, it may be held liable under a common-law negligence theory when there is evidence that it played a role in causing the accident. However, as is the case with any contractor, a subcontractor only owes a duty of care to a non-contracting third party (i.e., plaintiff) if it is shown that the subcontractor launched a force or instrument of harm, or that the plaintiff detrimentally relied upon the continued performance of the subcontractor's duties, or in a situation where the subcontractor has entirely replaced the other party's duty to maintain the premises safely (see Espinal, 98 N.Y.2d at 138; see also Royland v McGovern & Co., LLC, 203 A.D.3d 677 [2022]; Ragone v Spring Scaffolding, Inc., 46 A.D.3d 652, 654 [2007]). Here, Kleenoh did not create or exacerbate the allegedly wet condition on the stairway, it merely failed to remedy the condition. Thus, Kleenoh did not launch a force or instrument of harm which caused the accident. In this regard, the court notes that there is no evidence in the record supporting Countywide's claim that Kleenoh's workers "tracked" water into the stairway area and thereby created the allegedly hazardous condition. Moreover, there is no evidence that plaintiff detrimentally relied upon Kleenoh's cleaning services, as he testified that he was unaware of Kleenoh's existence. Finally, it cannot be said that Kleenoh entirely replaced Countywide's responsibility to maintain the premises in a safe condition. In particular, Countywide's site superintendent, Israel Meisner, was present at the jobsite on a daily basis and Countywide's owner, Mayer Weber, testified that he visited the jobsite twice a week and that he was responsible for worksite safety. Accordingly, that branch of Kleenoh's motion which seeks summary judgment dismissing plaintiff's common-law negligence claim against it is granted.
Plaintiff's Remaining Claims Against County Electric
County Electric cross-moves (MS #16) for summary dismissing plaintiff's Labor Law §§ 241 (6), 200 and common-law negligence claims against it. In its motion, County Electric raises the same argument that Kleenoh did in support of its motion for summary judgment. In particular, County Electric points out that it was merely an electrical subcontractor on the project that did not have any authority to control or supervise plaintiff's carpentry work. In this regard, County Electric points out that it was not even present at the jobsite on the day that the accident occurred. As such, County Electric maintains that it is not subject to liability under the Labor Law since it was not an owner, general contractor, or statutory agent. Further, with respect to plaintiff's common-law negligence claim against it, County Electric maintains that it did not create or have notice of any condition that allegedly caused plaintiff to slip and fall since it was not present at the jobsite on the accident date. In addition, County Electric avers that it did not owe plaintiff a duty of care as it was a subcontractor, and none of the Espinal exceptions apply. As a final matter, County Electric contends that the court should consider its cross motion for summary judgment notwithstanding the fact that it was made more than 60 days after the note of issue was filed since it has a reasonable excuse for failing to move in a timely manner. In particular, County Electric notes that it changed attorneys shortly before the note of issue was filed, and that, given the complexities of the case, its incoming counsel needed time to review the file prior to cross moving for summary judgment. In any event, County Electric argues that the court should consider its untimely motion, as it is nearly identical to Kleenoh's timely motion since both parties are in the same position as subcontractors who had no authority over plaintiff's work as a carpenter.
In opposition to County Electric's motion for summary judgment, plaintiff argues that part of County Electric's responsibilities as the electrical subcontractor on the project was to install and maintain adequate lighting in the stairway where the accident took place. Plaintiff further points to his own deposition testimony, wherein he stated that the stairway was dark and the lighting in this area was inadequate. According to plaintiff, this played a role in the accident since he could not see the water on the stairs that caused him to slip and fall. Thus, plaintiff maintains that County Electric is subject to liability under Labor Law §§ 241 (6) and 200 since it had control over a condition that contributed to the accident.
As an initial matter, the court finds that it may entertain County Electric's cross motion notwithstanding the fact that it was made more than 60 days after the note of issue was filed. In this regard, law office failure may constitute good cause for an untimely summary judgment motion provided that it is "supported by a detailed and credible explanation of the default" (Lanza v M-A-C Home Design and Constr. Corp., 188 A.D.3d 855, 856 [2020]). Here, County Electric's incoming counsel took over the case on December 15, 2021, only one week before the note of issue was filed. Given the complexities of the case, including five separate third-party actions and numerous deposition witnesses, the assertion that County Electric's incoming counsel required additional time to review the case file prior to moving for summary judgment is reasonable. Moreover, courts may consider an untimely summary judgment motion when it is made "on nearly identical grounds" as a timely motion (see Grande v Peteroy, 39 A.D.3d 590, 592 [2007]). Here, as a subcontractor that did not have the authority to direct or control plaintiff's work, County Electric is in the same position as Kleenoh, which timely moved for summary judgment.
As previously noted, subcontractors like County Electric are only subject to liability under the Labor Law for injuries sustained by another subcontractor's employee when it had the authority to supervise and control the injured employees work. Here, County Electric was not even present at the jobsite on the day of the accident and clearly did not have any authority to control or supervise the work performed by the carpentry subcontractor Vargas. Thus, there is no basis for plaintiff's Labor Law claims against County Electric. Furthermore, County Electric may not be held liable for plaintiff's injuries under a common-law negligence theory since it did not owe him a duty of care as none of the Espinal exceptions apply. In particular, County Electric did not unleash any force or instrument of harm that caused the accident. At most, County Electric failed to provide or maintain adequate lighting in the stairway area. Moreover, inasmuch as County Electric was not present at the jobsite on the day of the accident, it cannot be said that it entirely displaced the 650 Met or Countywide's responsibility to safely maintain the work area or that plaintiff detrimentally relied upon County Electric's services. Accordingly, plaintiff's common-law negligence claim against County Electric is dismissed.
Plaintiff's Labor Law § 241 (6) Claim Against 650 Met and Countywide
650 Met moves for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim against it except to the extent that plaintiff relies upon a violation of 12 NYCRR §23-1.7(d). In support of this branch of its motion, 650 Met maintains that, with the exception of §23-1.7(d), the Industrial Code provisions which plaintiff has alleged were violated are either too general to support a Labor Law § 241 (6) cause of action, or are inapplicable given the circumstances of the accident. Countywide moves for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim in its entirety. In so-moving, Countywide argues that all of the Industrial Code provisions which plaintiff relies upon are either too general to support a claim under the statute, or are inapplicable.
In opposition to these branches of 650 Met and Countywide's respective motions, plaintiff maintains that he has a viable Labor Law § 241 (6) claim to the extent that he has alleged violations of 12 NYCRR §§23-1.7(d), 23-1.15, 23-1.30 and 23-2.7(e). According to plaintiff, these provisions are specific enough to support a claim under the statute. Plaintiff further maintains that there is evidence in the record supporting his contention that violations of these regulations proximately caused the accident. Plaintiff also notes that, with respect to the alleged violation of §23-1.15, neither 650 Met nor Countywide has discussed this regulation in their motion papers. Accordingly, plaintiff argues that their motions for summary judgment dismissing his Labor Law § 241 (6) claim must be denied to the extent that he relies upon this regulation.
Labor Law § 241(6) provides, in pertinent part, that:
"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places."Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 [1993]). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, which sets forth a specific standard of conduct rather than a mere reiteration of common-law principles (see id. at 502; Ares v State, 80 N.Y.2d 959, 960 [1992]; see also Reyes v Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 53 [2011]).
As an initial matter, as noted above, plaintiff's opposition papers only discuss four Industrial Code provisions in support of his Labor Law § 241 (6) cause of action, thus, plaintiff has abandoned his claim to the extent that it is based upon the Industrial Code provisions listed in his pleadings other than 12 NYCRR §§23-1.7(d), 12-1.15, 23-1.30, and 23-2.7(e) (Kempisty v 246 Spring Street, LLC, 92 A.D.3d 474, 475 [2012]).
Turning to the regulations at issue, 12 NYCRR §23-1.7(d), which pertains to slipping hazards, states that "[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition" and that "water … which may cause slippery footing shall be removed, sanded or covered to provide safe footing." It is undisputed that this regulation is sufficiently specific to support a Labor Law § 241 (6) claim. Further, contrary to Countywide's contention, given plaintiff's sworn testimony that he slipped on water on the stairway, there is an issue of fact as to whether 650 Met and Countywide violated this regulation (Tolk v 11 West 42 Realty Investors, LLC, 201 A.D.3d 491, 492 [2022]).
12 NYCRR §23-1.15 sets forth certain minimum material and strength standards for handrails required in the Industrial Code. This regulation is sufficiently specific to support a Labor Law § 241 (6) claim (Donohue v CJAM Associates, LLC, 22 A.D.3d 710, 712 [2005]). Moreover, inasmuch as 650 Met and Countywide's motion papers fail to discuss this regulation, they have not met their prima facie burden in seeking summary judgment dismissing plaintiff's Labor Law § 241 (6) claim to the extent that he relies upon this provision. In any event, given plaintiff's testimony that the stairway lacked a handrail, there are issues of fact as to whether this regulation was violated and proximately caused the accident. Thus, those branches of 650 Met and Countywide's motions which seek summary judgment dismissing plaintiff's Labor Law § 241 (6) claim are denied to the extent that he relies upon this regulation.
12 NYCRR §23-1.30 requires that "[i]llumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition, and excavation operations." This provision is sufficiently specific to support a Labor Law § 241 (6) claim (see Lucas v KD Development Constr. Corp., 300 A.D.2d 634, 635 [2002]). Furthermore, there is conflicting evidence as to whether a violation of this regulation proximately caused plaintiff's injury. In particular, Mr. Williams (Kleenoh's employee) testified that the stairway area where the accident occurred was well lit with artificial lighting that was working at the time of the accident. In contrast, plaintiff testified that the stairway was dark and any artificial lighting in the area was either nonexistent or not functioning. Further, plaintiff states in his affidavit that this lack of lighting made it difficult for him to see the wet condition on the stairway that allegedly caused him to fall. Under the circumstances, there is a triable issue of fact as to whether a violation of §23-1.30 caused plaintiff's accident. Those branches of 650 Met and Countywide's motions which seek summary judgment dismissing plaintiff's Labor Law § 241 (6) claim are denied to the extent that he relies on this regulation.
12 NYCRR §23-2.7(e) states that "[t]he stairwells of temporary wooden stairways and of permanent stairways where enclosures or guard rails have not been erected shall be provided with a safety railing constructed in compliance with this Part (rule) on every open side." This regulation is sufficiently specific to support a Labor Law § 241 (6) claim. Moreover, given plaintiff's testimony that there were no handrails in the stairway and that he reached out to grab onto something as he fell, there is an issue of fact as to whether 650 Met and Countywide's violation of this provision proximately caused the accident (see Waldron v City of New York, 203 A.D.3d 565 [2022]). Accordingly, those branches of 650 Met and Countywide's motions which seek summary judgment dismissing plaintiff's Labor Law § 241 (6) claim are denied to the extent that he relies upon §23-2.7(e).
Plaintiff's Labor Law § 200/Negligence Claims Against 650 Met and Countywide
650 Met and Countywide separately move for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims asserted against them. In support of this branch of their respective motions, 650 Met and Countywide raise the same arguments. In particular, both of these movants maintain that they did not exercise any control or supervision over plaintiff's work. In support of this contention, 650 Met and Countywide point to plaintiff's own deposition testimony, wherein he stated that he was supervised solely by foremen employed by Vargas. In addition, to the extent that plaintiff's accident was caused by a dangerous premises condition, (water on the stairs, poor lighting conditions, and no handrail), 650 Met and Countywide argue that they did not create or have any actual or constructive notice of these alleged conditions. In this regard, the movants point to Mr. Williams' deposition testimony. In particular, the movants note that Mr. Williams testified that he inspected the stairway area where the accident occurred on the morning of the accident and did not see any water on the stairs. Mr. Williams further testified that the area was fully illuminated with temporary string lighting and that there was a handrail on the staircase.
In opposition to 650 Met and Countywide's motions to dismiss his Labor Law § 200 and common-law negligence claims against them, plaintiff maintains that neither of the movants have met their prima facie burden of demonstrating that they lacked notice of the water condition, inadequate lighting, and lack of a handrail in the stairway. In any event, plaintiff argues that, given his testimony that these conditions were present the entire time that he worked on the underlying project, and that he had complained about these conditions to his supervisor, there are clearly issues of fact regarding whether or not 650 Met and Countywide had constructive notice of these conditions.
Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide workers with a safe place to work (see Chowdhury v Rodriguez, 57 A.D.3d 121, 127-128 [2008]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the plaintiff's work, or who have actual or constructive notice of the unsafe premises condition that is claimed to have caused the underlying accident (see Bradley v Morgan Stanley & Co., Inc., 21 A.D.3d 866, 868 [2005]; Aranda v Park East Constr., 4 A.D.3d 315 [2004]; Akins v Baker, 247 A.D.2d 562, 563 [1998]). Specifically, "[w]here a premises condition is at issue, property owners [and contractors] may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, 57 A.D.3d 54, 61 [2008]). On the other hand, "[w]here a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability. If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercisers no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law" (LaRosa v Internap Network Serv. Corp., 83 A.D.3d 905 [2011]).
Here, the accident allegedly arose out of several dangerous conditions, including water on the staircase, inadequate lighting, and the lack of a handrail on the stairs. 650 Met and Countywide have met their initial burden of demonstrating that they did not create or have notice of these allegedly dangerous conditions by pointing to Mr. Williams' testimony, (Kleenoh's employee), which stated that the stairway had a safety railing and that he had inspected the stairway on the morning of the accident and did not observe any water on the stairs or inadequate lighting. However, in opposition to this prima facie showing, plaintiff has raised material issues of fact as to whether 650 Met and Countrywide had constructive notice of these alleged conditions. In particular, plaintiff testified that the stairway lacked a railing. Further, plaintiff testified that the wet condition on the stairs and lack of lighting were constant, ongoing conditions that were present the entire time that he worked on the project (see Wijesinghe v Guena Vida Corp., 210 A.D.3d 823, 824 [2022]). Thus, the issue of whether or not 650 Met and Countrywide had constructive notice of the alleged dangerous conditions revolves around the credibility of witnesses, which can only be resolved by the trier of fact. Accordingly, those branches of 650 Met and Countywide's motions which seek summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims are denied.
Third-Party Claims
650 Met and Astral move for summary judgment under their contractual indemnification claims against Countywide, Kleenoh, and County Electric. 650 Met and Astral also move for summary judgment under their breach of contract to procure liability insurance against Kleenoh and County Electric.
In addition, Countywide moves for summary judgment under its contractual indemnification claims against Kleenoh and County Electric.
Finally, County Electric cross-moves for summary judgment dismissing all common-law and contractual indemnification claims asserted against it.
As previously noted, the five third-party actions originally asserted in this action were severed, pursuant to this court's April 21, 2021, order. Thus, the branches of these summary judgment motions involving these third-party claims are not properly before this court. The actions asserting these claims now have different index numbers. Accordingly, those branches of 650 Met, Astral, Countywide, and County Electric's respective motions which involve these third-party claims are denied without prejudice to the motions being made in the severed third-party actions.
The court had to confirm that this mistake was not the court's. Not only is this action voluminous, but there was a second action consolidated with this one. As Astral is dismissed in this decision and order, it is only 650 Met that still is asserting this claim. 650 Met could have asserted cross-claims against the co-defendants for indemnification which were not in the third-party actions but were in the main action, or the action which was consolidated with it (originally filed under 507112/2021) but it did not do so. To be clear, the answer to plaintiff's complaint filed by 650 Met, document 10, also included with this motion as Document 412, does not assert any cross claims for contractual indemnification against Kleenoh, or County Electric. Thus, these claims are presumably in their third-party actions. Similarly, their answers do not assert any cross claims for breach of the covenant to procure insurance against Kleenoh or County Electric. Thus, these claims are presumably also in their third-party actions. With regard to Countywide, however, 650 Met neither asserted a cross claim against it in their answer, nor filed a third-party action against it. While counsel argues, at Point V of his affirmation in support [Doc 411 ¶106 et seq], that 650 Met is entitled to full contractual indemnification from Countywide, it would appear that he forgot to make such a claim.
The second action was consolidated into this one before any of the defendants answered that complaint.
Similarly, Countywide does not assert any cross claims for contractual indemnification in its answer [Doc 3] against Kleenoh or County Electric. Thus, these claims are also presumably in its third-party actions. All five third-party actions were brought by either 650 Met or Countywide.
As the order severing the five third-party actions was issued [Doc 200] well before any of these motions were filed, counsel clearly should have been aware that they could not make motions regarding the third-party actions under this index number.
Conclusions
Accordingly, it is hereby ORDERED that:
(1) The branch of 650 Met and Astral's motion, in mot. seq. 13, which seeks summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 240-a claims against both defendants is granted. The branch of Astral's motion which seeks summary judgment dismissing plaintiff's remaining claims against Astral, as well as all counterclaims and cross claims against it, is granted. The branch of 650 Met's motion which seeks summary judgment dismissing plaintiff's Labor Law § 241 (6) claim against 650 Met is denied to the extent that plaintiff relies upon alleged violations of 12 NYCRR §§23-1.7(d), 23-1.15, 23-1.30, and 23-2.7(e). To the extent that plaintiff has claimed there were violations of other sections of the Industrial Code, those claims are dismissed. The branch of 650 Met's motion which seeks summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against 650 Met is denied. The branch of 650 Met's motion which seeks summary judgment on its third-party claims for contractual indemnification and breach of the covenant to procure insurance asserted against Kleenoh and County Electric are denied without prejudice to this relief being requested in the severed third-party actions. The branch of 650 Met's motion which seeks summary judgment on its third-party claims for contractual indemnification against Countywide is denied, as 650 Met does not have a third-party claim against Countywide, nor does it have a cross claim against it. The branch of 650 Met's motion which seeks summary judgment dismissing all cross claims and counterclaims asserted against it is granted. The only parties that have asserted cross claims or counterclaims against 650 Met are County Electric, which has been dismissed from plaintiff's complaint in this decision and order, and Countywide, which asserts claims for common law indemnification and contribution in its answer [Doc 3]. As 650 Met's liability would be purely vicarious, it cannot be found negligent and Countywide, the general contractor, cannot be indemnified by 650 Met, the property owner, pursuant to common law indemnification principles.
(2) The branch of Countywide's motion, in mot. seq. 14, which seeks summary judgment dismissing plaintiff's Labor Law 240 (1) cause of action is granted. The branch of Countywide's motion which seeks summary judgment dismissing plaintiff's Labor Law § 241 (6) claim against it is denied to the extent that plaintiff relies upon violations of NYCRR §§23-1.7(d), 23-1.15, 23-1.30, and 23-2.7(e). To the extent that plaintiff has claimed there were violations other sections of the Industrial Code, those claims are dismissed. The branch of Countywide's motion which seeks summary judgment dismissing plaintiff's Labor Law §200 and common-law negligence claims against it is denied. The branch of Countywide's motion which seeks summary judgment under its contractual indemnification claims against Kleenoh and County Electric is denied without prejudice to said motion being made in the severed third-party action;
(3) The branch of Kleenoh's motion, in mot. seq. 15, which seeks summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), 200, and common-law negligence claims against it is granted, and plaintiff's complaint is dismissed in its entirety as against Kleenoh;
(4)The branch of County Electric's motion, in mot. seq. 16, which seeks summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action is granted. The branch of County Electric's motion which seeks summary judgment dismissing plaintiffs Labor Law § 241 (6), 200, and common-law negligence claims against it is also granted, and plaintiffs complaint, along with all cross claims asserted by the defendants in the main action are dismissed. The branch of County Electric's motion which seeks summary judgment dismissing all common-law indemnification/contribution and contractual indemnification claims against it is denied, without prejudice to said motions being made in the third-party actions.
The court, having considered the parties' remaining contentions, if any, finds them unavailing. All relief not expressly granted herein has been considered and is denied.
This constitutes the decision and order of the court.