Opinion
112121/2011
03-02-2020
Ronald RAWALD and Maureen Rawald, Plaintiffs, v. DORMITORY AUTHORITY of the State of New York, Turner Construction Company, Sea Crest Construction Corp., Peter Scalamandre & Sons, Inc., and Specialty Flooring Systems, Inc., Defendants. Turner Construction Company, Third-Party Plaintiff, Component Assembly Systems, Inc., Peter Scalamandre & Sons, Inc., and Sea Crest Construction, Third-Party Defendants.
O'Dwyer & Bernstein, LLP, New York, NY (Steven Aripotch of counsel), for plaintiffs. Conway, Farrell, Curtin & Kelly, PC, New York, NY (Anne Marie Esposito of counsel), for defendant Dormitory Authority of the State of New York Dopf, PC, New York, NY (Martin B. Adams of counsel), for defendant Turner Construction Company Perry Van Etten Rozanski & Primavera, LLP, New York, NY (Jessica J. Beauvais of counsel), for defendants Sea Crest and Peter Scalamandre & Sons Law Offices of James J. Tommey, Esq., Hartford, CT (John C. Spataro of counsel), for defendant Component Assembly Systems Inc.
O'Dwyer & Bernstein, LLP, New York, NY (Steven Aripotch of counsel), for plaintiffs.
Conway, Farrell, Curtin & Kelly, PC, New York, NY (Anne Marie Esposito of counsel), for defendant Dormitory Authority of the State of New York
Dopf, PC, New York, NY (Martin B. Adams of counsel), for defendant Turner Construction Company
Perry Van Etten Rozanski & Primavera, LLP, New York, NY (Jessica J. Beauvais of counsel), for defendants Sea Crest and Peter Scalamandre & Sons
Law Offices of James J. Tommey, Esq., Hartford, CT (John C. Spataro of counsel), for defendant Component Assembly Systems Inc.
Gerald Lebovits, J.
Recitation, as required by CPLR 2219(a), of the papers considered in review of these motions for summary judgment. Papers Numbered:
Dormitory Authority of the State of New York's Notice of Motion (Seq. No. 003), Exhibits, Memo of Law 1-13
Affidavits in Opposition 14, 15
Reply Affirmations 16, 17
Turner Construction Company's Notice of Motion (Seq. No. 004), Exhibits, Memo of Law 14-33
Affidavits in Opposition, Exhibits 34-36
Reply Affirmations 37, 38
Sea Crest Construction Corp.'s Notice of Motion (Seq. No. 005) 39-63
Affidavits in Opposition, Exhibits 64-67
Reply Affirmations 68-73
Plaintiff Ronald Rawald was injured in an accident on the site of a construction project financed by defendant Dormitory Authority of the State of New York (DASNY). Rawald and his wife Maureen sued DASNY, defendants Sea Crest Construction Corporation and Peter Scalamandre & Sons, Inc. (the prime contractor on the project, collectively, Sea Crest)), and defendant Turner Construction Company (the construction manager on site).
DASNY now moves in motion sequence 003 for summary judgment on the complaint, or, alternatively, summary judgment on its claims for contractual and common-law indemnification against Sea Crest. Sea Crest and Turner now each move for summary judgment dismissing the complaint under CPLR 3212 (motion sequences 004 and 005, respectively).
Motion sequences 003, 004, and 005 are consolidated for disposition.
BACKGROUND
Briefly, the following party witnesses appeared for an examination before trial (EBT): Rawald was deposed on April 16, 2013 (Exhibit J); Manuel Saca (Saca), a field representative for DASNY, was deposed on June 6, 2013 (Exhibit D); Jose Abreu (Abreu), Turner's project superintendent, was deposed on August 16, 2013 (Exhibit E); Jim Dergin (Dergin), Sea Crest's construction superintendent, was deposed on September 29, 2014 (Exhibit C); Edward Kancza (Kancza), Component Assembly System Inc.'s (CAS) foreman, was deposed on December 4, 2014 (Exhibit G); and Mark Antonucci (Antonucci), president of Specialty Flooring Systems, Inc. (SFS) , was deposed on February 15, 2018 (Exhibit H).
SFS' motion (CPLR 3212 ) (Motion Seq. No. 006) to dismiss the Complaint and any cross claims against it was granted without opposition by decision and order of the court dated June 3, 2019.
DASNY asserts that in 2006 the City University of New York (CUNY), as owner and landlord of John Jay College (the College) located at 899 10th Ave., New York, New York (the Premises), sought to construct a new campus building at the College (the Expansion Project) and hired DASNY to finance and provide construction services (Saca tr 19:6-9). The construction of the Expansion Project was completed in 2013 (Dergin tr 17:24-25; 18:2).
Once construction was underway, DASNY entered into contracts with approximately 17 contractors to work on the Expansion Project (Saca tr 24:16-19). One of those contracts was a February 5, 2008, agreement with Sea Crest (the Prime Contract) (Exhibit F) to perform construction work that included, but was not limited to, floor installation and general carpentry work. The Prime Contract identified DASNY as the "owner" and Sea Crest as "the Contractor," and contained the following indemnification provisions, entitled "Section 14.05 - Risks Assumed by the Contractor":
"A. The Contractor solely assumes the following distinct and several risks whether said risks arise from acts or omissions, whether supervisory or otherwise, of the Owner, of the Client, of any Subcontractor, of third persons or from any other cause, including difficulties which may be encountered in the prosecution of the Work, whether said risks are within or beyond the control of the Contractor and whether said risks involve any legal duty, primary or otherwise, imposed upon the Owner, excepting only risks which arise from faulty designs as shown by the plans and specifications, unforeseen obstacles or from the negligence of the Owner or the Owner's members, officers, representatives or employees that caused the loss, damage or injuries hereinafter set forth:
...
2. The risk of claims, just or unjust, by third persons against the Contractor or the Owner, the Client, and the Construction Manager on account of wrongful death, bodily injuries and property damage, direct or consequential, loss or damage of any kind whatsoever arising or alleged to arise out of or as a result of or in connection with the performance by the Contractor of the Work, whether actually caused by or resulting from the performance of the Work, or out of or in connection with the Contractor's operations or present at or in the vicinity of the Site. The Contractor shall bear the risk of all deaths, injuries, damage or losses sustained or alleged to have been sustained prior to the construction completion of the Work. The Contractor shall bear the risk for all deaths, injuries, damage or losses sustained or alleged to have been sustained resulting from the Contractor's negligence or alleged negligence which is discovered, appears, or is manifested after acceptance by the owner.
3. The Contractor assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever, including death resulting there from, to all persons, whether employees of the Contractor or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in connection with the execution of the Work. If any person shall make said claim for any damage or injury, including death resulting there from, or any alleged breach of any statutory duty or obligation on the part of the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees, the Contractor shall assume the defense and pay on behalf of the Owner, the Client, the Owner's Representative, the Construction Manager, servants and employees, any and all loss, expense, damage or injury that the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees, may sustain as a result of any claim, provided however, the Contractor shall not be obligated to indemnify the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees for their own negligence, if any. The Contractor agrees to assume, and pay on behalf of the Owner, the Client, and the Owner's Representative, Construction Manager, servants and employees, the defense of any action at law or equity which may be brought against the Owner, the Client and the Owner's Representative, Construction Manager, servants and employees. The assumption of defense and liability by the Contractor includes, but is not limited to the amount of any legal fees associated with defending, all costs of investigation, expert evaluation and any other costs including any judgment or interest or penalty that may be entered against the Owner, the Client and the Owner's Representative, Construction Manager, servant and employees, and any said action" (the Prime Contract's Indemnity Provision 14.05 (A) (2) and 14.05 (A)(3), respectively).
Sea Crest executed subcontracts with CAS (Exhibit U to Sea Crest's Notice of Motion Seq. No. 005) to perform general carpentry work. In 2010, CAS employed plaintiff Rawald as a carpenter to work at the Expansion Project's construction site (Rawald tr 17:2-20). For the purpose of the matter before the court, it is noted that Rawald was to install aluminum strips, or reveal beads, inside a south wall (the assigned task) and CAS directed plaintiff on how to perform his job (id. tr 73:10-24), providing him with all the necessary tools and materials needed to complete the task (Kancza tr 39:12-18), which at times required that Rawald crouch, or kneel, to perform the installation (Rawald tr 40:15-22). On February 18, 2009, Sea Crest also executed an agreement with SFS (Exhibit V to Sea Crest's Motion Seq. No. 005) to install terrazzo flooring for the Expansion Project (Antonucci tr 7:2-10; 14:21-25; 15:2-20). It is undisputed that Sea Crest was responsible for supervising both CAS' and SFS' subcontracted work.
Skidmore, Owings & Merrill, the registered architect of the Expansion Project, hired Turner pursuant to a written agreement, as the construction manager of the Expansion Project (Abreu tr 14:8-24; 15:2-20). Turner oversaw, coordinated and monitored the work among various contractors and hired safety contractors for the Expansion Project (Saca tr 15:2-6; 32:10-19; and Abreu tr 19:11-21).
On May 17, 2011 Rawald was walking down the south corner of the construction site's second floor to perform his assigned task (Rawald tr 19:2-7; 45:5-18; Kancza tr 26:14-22; and Dergin tr 61:19-25; 62:1-9) when he "stepped" on concrete ground which caused him to twist his right knee and give out, turning in such a way that he was not able to walk (the accident) (Rawald tr 45:4-10; 49:19-25; 50:3-7; 110:6-10). Rawald did not fall to the ground (id. tr 50:8-11) and admitted there was not debris on the ground (id. tr 43:17-20). The accident was unwitnessed (id. tr 86:17-23).
Prior to the accident, it was discovered that SFS could not install the terrazzo flooring on the subject second floor because a non-party subcontractor poured concrete in the area that resulted in a high level ground (Saca tr 50:3-10). Rawald also testified that he could not install the reveal beads at the proper elevation because the concrete floor was too high (Rawald tr 26:16-21). In order to reduce the height of the concrete and level off the ground so that SFS could bind and adhere the terrazzo flooring and Rawald could complete his assigned task, the concrete floor needed to be scarified—i.e. , using a concrete grinding machine to essentially sand down the concrete to reduce and level it out (Saca tr 49:15-18; and Dergin tr 65:22-25; 66:2-5). Sea Crest and Turner asserted that the scarification process removed anywhere between an eighth-of-an-inch and five-eighth-of-an-inch concrete (Dergin tr 107:2-8; and Abreu tr 45:15-19). Rawald, who had neither performed the scarification nor worked for Sea Crest, claimed that about a half-inch or an inch to an inch-and-a half of concrete may have been removed through the scarification process (Rawald tr 27:3-7).
During the scarification process, Sea Crest would cordon off the area so other contractors could not work in the area simultaneously (Dergin tr 125:18-22; 126:2-9). Sea Crest would also advise CAS not to work in the area while the scarification process was in progress (Dargin tr 81:20-24; and Kancza tr 23:23-25; 24:2-5). Once the scarification process was complete, Sea Crest removed any barriers or enclosures and would then advise SFS that the floor was ready for the terrazzo flooring installation (Dergin tr 79:22-25; 80:2-7; 126:17-25; and 127:2-10).
DASNY asserted that after the concrete was scarified, the ground was intentionally left with a rough and unsmoothed surface (Saca tr 51:4-14), and according to Sea Crest, the floor appeared rough, like sandpaper, with "swirls" throughout (Dergin tr 73:9-18). Plaintiff testified that the scarification process left the concrete floor appearing like the "surface of the moon," with potholes as deep as an-inch-and-a-half to two-inches (Rawald tr 27:3-7; 32:8-14; 49:14-15), or like divots (id. tr 110:4-10). Turner attested that the floor surface after the scarification process left slight cuts in the concrete similar to "hair lines" (Abreu tr 46:6-16), while CAS described the surface after the scarification as being uneven, like "waves" in the concrete (Kancza tr 43:9-13).
On the day of the accident, Rawald was aware that the area where the accident occurred had been scarified. He was able to walk over the scarified concrete floor numerous times before the day of the accident (Rawald tr 86:6-16) and even used a six-foot ladder and a portable man lift over the subject floor area without any difficulty (id. tr 41:25; 42:2-24; 43:2-16) and was able to navigate walking on the scarified surface without a problem (id. tr 43:21-25; 44:2-3). Rawald did not complain to anyone about the condition of the scarified concrete surface which remained unchanged at the time of the accident (id. tr 33:4-16; 94:7-10; and 112:9-12), but he was certain others had complained (id. tr 32:22-25; 33:2-9). Rawald also claims to have voiced concerns about it, "just talk", but not in an official way to any of his superiors (id. tr 33:2-13).
Sea Crest's superintendent, Dergin, testified that he had not observed any debris, or holes, in the scarified surface (Dergin tr 74:2-5), while Turner's superintendent, Abreu, asserted that he did not receive any complaints of holes having been created as a result of the scarifying process (Abreu tr 84:6-9) and SFS's president, Antonucci, testified that he too had not observed any holes or divots in the scarified floor area (Antonucci tr 36:2-6). Indeed, Rawald's own employer, CAS's foreman, Kancza, testified that when he reported to the area of Rawald's accident he did not observe any divots, or holes, that were unsafe or hazardous (Kancza tr 35:8-19; 55:13-23). Ordinarily, if Rawald did see an unsafe condition, he would report it to his shop steward (Rawald tr 33:17-21). A report of the alleged unsafe condition of the scarified surface, however, was never filed by Rawald.
Rawald asserts that he suffered a collapsed meniscus as a result of the accident, which continues to limit his activities and cause continual pain (see Rawald's attorney affirmation ¶ 25 of plaintiffs' partial opposition papers to DASNY's motion). On or about October 24, 2011, plaintiffs commenced the instant action against defendants seeking damages for the personal injuries Rawald sustained due to the alleged negligence in the ownership, operation, management and control of the construction worksite generally claiming that: (1) a rough and uneven hazardous condition was made to exist which interfered with Rawald's safe passage; (2) Rawald was not warned of the dangerous condition; (3) the subject areas was not properly barricaded or safeguarded; and (4) the worksite was not properly supervised, inspected or safe, violating Labor Laws §§ 200, 241(6) and Industrial Code §§ 23-1.5, 23-1.7(e)(1) and 23-1.7(e)(2).
Defendants filed and served answers to the Complaint, and Turner and Sea Crest commenced third-party actions (Exhibit A), generally denying the allegations in the Complaint, asserting affirmative defenses and cross-claiming against co-defendants.
After completion of all discovery, the parties interposed the within timely filed summary judgment motions seeking dispositive relief.
PARTIES' ARGUMENTS
I. DASNY'S Motion (Sequence Number No. 003)
DASNY moves for summary judgment ( CPLR 3212 ) dismissing plaintiffs' action on the grounds that: (a) Industrial Code § 23-1.5 is not sufficiently specific to give rise to a Labor Law § 241 (6) violation; (b) Industrial Code § 23.1.7 (e) (1) and (e) (2) are not applicable to the facts of this case because the alleged tripping hazard was integral to the work being performed; and (c) DASNY cannot be held liable for common law negligence and violations of Labor Law § 200 because DASNY was not negligent and did not control the means and methods of the injury producing work. In the alternative, should the court find DASNY liable, DASNY seeks an order granting its cross claims against Sea Crest for common law negligence and contractual indemnification pursuant to the Prime Contract's Indemnification Provision 14.05 (A)(3).
In opposition, plaintiffs contend DASNY's motion must be denied. Plaintiffs argue (a) DASNY acted as the "owner" of the Premises and as CUNY's agent and therefore is liable under New York's Labor Laws; and (b) triable issues of fact exists as to whether: (i) there were divots, or holes, produced after the concrete ground was scarified, (ii) the divots, or holes, were a defective condition or an intended consequence of the scarifying process, (iii) the divots, or holes were integral to plaintiff's work, and (iv) the alleged defect violated Industrial Code § 23-1.7 (e) (1) as it was a tripping hazard in a passageway that should have been kept free from obstructions or conditions which could cause a tripping hazard. Finally, plaintiffs argue (c) DASNY is liable under common law negligence and Labor Law § 200 because it had authority over the worksite and failed to demonstrate that it neither created, nor had any actual or constructive notice of the alleged defective condition.
Sea Crest argues that DASNY's motion must be denied because (a) DASNY not only budgeted and financed the Extension Project, but was identified as the "owner" in the Prime Contract and Turner, as the construction manager, also recognized DASNY as the "owner" as evidenced by the fact that DASNY could issue a stop work directive for any safety conditions presenting an eminent danger; and (b) there is no evidence that Sea Crest was negligent and therefore DASNY is not entitled to contractual indemnification against it. Sea Crest also argues (c) DASNY failed to prove itself free from negligence; (d) the Prime Contract's Indemnification Provision 14.05 (A) (2) is not triggered until there is a final determination that Sea Crest was negligent, if at all; (e) the Indemnification Provision 14.05 (A) (3) of the Prime Contract is unenforceable as it violated General Obligations Law (GOL) § 5-322.1, which prohibits an owner from requiring a contractor to indemnify an owner for its own negligence; and (f) DASNY failed to present admissible evidence that Sea Crest had notice of the alleged dangerous condition, or that it created the alleged dangerous condition.
In reply, DASNY disputes both plaintiffs' and Sea Crest's contentions in opposition to its dispositive motion. Specifically, DASNY maintains that the Indemnification Provision 14.05 (A) (3) of the Prime Contract does not require a showing of negligence, but rather that the accident resulted from, or arose from, Sea Crest's scarification work and does not violate GOL's § 5-322.1 because, as stated in that provision, Sea Crest "shall not be obligated to indemnify DASNY for its own negligence, if any." Moreover, the Indemnification Provision 14.05 (A) (2) of the Prime Contract, DASNY contends, is not applicable: that provision was only triggered by the completion of the Expansion Project in 2013, and Rawald's injury occurred in 2011.
II. Turner's Motion (Sequence No. 004)
Turner moves for summary judgment ( CPLR 3212 ) to dismiss the Complaint and any cross claims against it. Turner argues (a) it cannot be held liable under Labor Law § 200 or common law negligence because it did not supervise or control plaintiff's work, and did not have actual and/or constructive notice of the alleged defective condition; (b) as a construction manager, Turner cannot be held liable under Labor Law § 241(6) ; (c) Industrial Code § 23-1.5 is a general provision and cannot be invoked as a violation of Labor Law § 241(6) ; (d) Industrial Code §§ 23-1.7 (e)(1) and (e)(2), are not applicable to this case because: (i) the condition of the floor as a result of the scarification process did not constitute dirt, debris, or an obstruction, nor did plaintiff fall, nor sustain any injuries due to dirt, debris, scattered tools and/or materials at the construction site; and (ii) the condition complained of was intentionally created in order to level the concrete flooring in preparation for the installation of a finished floor; (e) plaintiff Maureen Rawald's derivative causes of action must be dismissed for the same reasons herein stated as grounds for dismissing the Complaint; and (f) Turner did not oversee or have control over the scarifying work performed by Sea Crest.
Plaintiffs oppose Turner's motion and contend its application must be denied because: (a) Turner had the authority to issue a "stop work" directive, could instruct a contractor or subcontractors to perform work in a different manner, and hired subcontractors to oversee safety at the construction site; (b) Turner acted as the overall manager of the Extension Project; and (c) Turner acted as the agent for the owner, DASNY.
Third-party defendant, CAS, conditionally opposes Turner's motion seeking to dismiss its cross claims and contends that if the court denies Turner's motion to dismiss plaintiffs' Complaint then the court must also deny Turner's motion to dismiss all cross claims on the same basis.
Sea Crest contends that Turner's motion must be denied on the ground that Turner is liable under Labor Law § 241(6), § 200 and common law negligence because: (a) Turner was not a mere construction manager, but a prime contractor representing the owner, DASNY; and (b) Turner hired laborers to clean-up construction garbage and debris and provide safety protections at the job site.
III. Sea Crest's Motion (Sequence No. 005)
Sea Crest moves for summary judgment ( CPLR 3212 ) to dismiss plaintiffs' complaint. Sea Crest argues (a) there are no triable issues of fact; (b) no claim under Labor Law § 200 and common law negligence can be sustained against Sea Crest because: (i) the alleged defective condition complained of which caused Rawald's accident was a trivial, non-actionable defect, and (ii) Sea Crest had no actual and/or constructive notice of the alleged defective condition; and (c) Industrial Code § 23-1.5 is a general safety standard and cannot sustain a violation of Labor Law § 241(6), and Industrial Code Section 23-1.7 addresses slipping or tripping hazards due to debris or slippery substances, which were not present here.
Sea Crest also moves to dismiss Turner's cross claims against it on grounds that: (a) Turner is not entitled to indemnification and contribution from Sea Crest because it failed to prove that Turner was free from negligence; (b) the record lacks any evidence that Rawald's accident resulted from negligence attributable to Sea Crest; and (c) Turner was DASNY's agent at the construction site and oversaw the construction work of trade contractors, had authority to control activities at the worksite, and could stop any unsafe work practices.
Plaintiffs oppose Sea Crest's motion, contending (a) Sea Crest is liable under § 200 of the Labor Law and common law negligence because it created the defective condition which caused Rawald's accident; (b) Sea Crest controlled the worksite area as the general contractor; (c) Sea Crest had actual knowledge of the defective condition; and (d) the divot, or hole was an obstruction which caused Rawald's accident, making Industrial Code § 23-1.7 (e) (1) and (e) (2) are applicable to the facts of this case.
Third-party defendant, CAS, conditionally opposes Sea Crest's motion seeking to dismiss its cross claims and contends that if the court denies Sea Crest's motion to dismiss plaintiffs' Complaint then the court must also deny Sea Crest's motion to dismiss all cross claims on the same basis.
Turner opposes Sea Crest's motion, contending that the court must deny the application because: (a) Sea Crest had actual and constructive notice of the allegedly defective condition because Sea Crest in fact created the condition; (b) Sea Crest did not produce any reports that it inspected the scarified concrete ground prior to Rawald's accident; (c) Turner was not negligent; (d) Turner did not instruct Sea Crest's work, nor controlled the activity that led to Rawald's accident; (e) Turner did not control or supervise Rawald's assigned carpentry work; (f) GOL § 5-322.1 does not apply to the facts of this case because the Indemnification Provision 14.05 (A) (3) of the Prime Contract specifies that the contractor shall not be obligated to indemnify the construction manager for their own negligence, if any; (g) Turner was not an owner of the Premises but merely a construction manager; and (h) Sea Crest's failure to procure the requisite insurance precludes dismissal of Turner's cross claim against it for breach of contract.
In reply, Sea Crest reiterates its arguments for dismissal of the Complaint and any cross claims annexing as Exhibit B to its reply papers, a copy of the pertinent insurance which Sea Crest notes has been in Turner's possession. Sea Crest also contends that CAS failed to raise any triable issues of fact necessitating a trial.
For the reasons set forth below, Motion Sequences 003, 004 and 005 are granted and the Complaint and the Third-party Actions are dismissed.
DISCUSSION
"It is well settled that 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’ " ( Pullman v. Silverman , 28 NY3d 1060, 1062 [2016], quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] ). "The court's function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine the merits of any such issues or to assess credibility" ( Meridian Mgt. Corp. v. Cristi Cleaning Serv. Corp. 70 AD3d 508, 510-511 [1st Dept 2010] [internal quotation marks and citation omitted] ). That an accident is unwitnessed will not necessarily bar summary judgment (see Gonzalez v. 1225 Ogden Deli Grocery Corp. , 158 AD3d 582, 584 [1st Dept 2018] ; Marrero v. 2075 Holding Co. LLC , 106 AD3d 408, 410 [1st Dept 2013] ; and Franco v. Jemal , 280 AD2d 409, 410 [1st Dept 2001] ).
At the outset, there can be no dispute that DASNY stood in the shoes of the "owner" of the Premises respecting the Expansion Project. The Primary Contract not only identified DASNY as the "owner", but DASNY itself never produced an affirmative statement from someone with personal knowledge of the facts denying the "owner," and/or "owner's agent" role throughout the construction project. Having failed to rebut the assertion that it was the "owner," or the perception other contractors at the Expansion Project had that DASNY was the "owner", the court concludes that DASNY held itself out as the "owner" of the Premises/Expansion Project.
Similarly, Turner failed to present a prima facie entitlement to a finding that it was merely a construction manager and was not acting as agent for DASNY, the owner. Contrary to Turner's attorney affirmation, Turner did in fact admit that it was the construction manager representing the owner, DASNY (Abreu tr at 10-13; 15:16-16:5). Moreover, both DASNY and Turner failed to provide the court with the pertinent contracts/agreements with CUNY and the Expansion Project's architect, Skidmore, Owings & Merrill, which could have shed light on the agreed upon contractual roles either would assume for the construction project. As presented to the court, DASNY was the "owner" and Turner its agent, subjecting both entities to potential liability under Labor Law § 241(6).
Labor Law § 241(6)Labor Law § 241(6) provides:
"All contractors and owners and their agents, ... when constructing or demolishing buildings ... shall comply with the following requirements:
6. All areas in which construction ... 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 the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provision of this subdivision, and the owners and contractors and their agents for such work ... shall comply therewith."
The Commissioner's rules are set forth in the Industrial Code, 12 NYCRR Part 23. To support a claim under Labor Law § 241 (6), the Industrial Code Section that a plaintiff is relying upon "must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles" ( Misicki v. Caradonna , 12 NY3d 511, 515 [2009], citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505 [1993] ); see also Kelmendi v. 157 Hudson St., LLC, 137 AD3d 567 [1st Dept 2016] ). Moreover, Labor Law § 241 (6) imposes a nondelegable duty on "owners and contractors to ‘provide reasonable and adequate protection and safety’ for workers" (Ross, 81 NY2d, 501-502). Here, Rawald's Labor Law § 241 (6) claim is premised on an alleged violation of Industrial Code 12 NYCRR §§ 23-1.5, 23-1.7 (e) (1) and 23-1.7 (e) (2).
Section 23-1.5 of the Industrial Code is entitled, "General responsibility of employers" and has been held to be insufficient to support a basis for a Labor Law § 241 (6) claim (see Sihly v. New York City Tr. Auth. , 282 AD2d 337 [1st Dept 2001], lv dismissed 96 NY2d 287 [2001]; Martinez v. 342 Prop. LLC , 128 AD3d 408, 409 [1st Dept 2015] ). Additionally, plaintiffs did not address the arguments for dismissal of Labor Law § 241(6) based upon this Industrial Code Section and the claim is therefore deemed abandoned (see Kempisty v. 246 Spring St., LLC , 92 AD3d 474, 475 [1st Dept 2012] ["Where a defendant so moves, it is appropriate to find that a plaintiff who fails to respond to allegations that a certain section is inapplicable or was not violated be deemed to abandon reliance on that particular Industrial Code section"] ).
Industrial Code §§ 23-1.7 (e) (1) and (e) (2) provides, in pertinent part:
"(e) Tripping and other hazards.
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.
(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
These sections have been found to be specific enough to form the basis for a claim pursuant to Labor Law § 241 (6) (see Picchione v. Sweet Constr. Corp. , 60 AD3d 510 [1st Dept 2009] ). Although there is no dispute that Rawald's accident occurred in a "passageway," Industrial Code Section 23-1.7(e)(1) is inapplicable to this case because Rawald testified and admitted that he did not trip, or fall, on dirt or debris.
Rawald's claim that somehow the divot constitutes an obstruction is unavailing in light of the absence of any testimony that Rawald tripped and/or fell. Indeed, Rawald essentially stated that he had a misstep into a divot on the concrete ground surface that he had known to be scarified for days before the accident—and which was not dangerous or hazardous enough to report until he was injured and commenced this action. Since Rawald's testimony did not factually support a violation of Labor Law § 241 (6) claim based on Industrial Code § 23-1.7 (e) (1), the applications to dismiss this cause of action must be granted.
Furthermore, the Court of Appeals has held that there is no violation of Industrial Code § 23-1.7 (e) (1) if the alleged hazard was integral to the work being performed ( O'Sullivan v. IDI Constr. Co. Inc., 7 NY3d 805, 805 [2006] ). In other words, if there was a tripping hazard that was integral to the construction work, the alleged hazard cannot be considered dirt, debris, an obstruction or a sharp projection within the meaning of the referenced Industrial Code § 23-1.7 (e) (1). Here, the resulting textured surface of the concrete floor was undisputedly intentional and an integral part of the scarification process (see also Rajkumar v. Budd Contr. Corp., 77 AD3d 595, 595-596 [1st Dept 2010] ).
Moreover, plaintiffs did not present any admissible evidence that the scarified surface was left in a defective manner. Rawald's self-serving statement fails to meet the burden, in a summary judgment motion, of raising a triable issue of fact on the matter. Nor did plaintiffs support a claim that, circumstantially, the scarification process was negligently performed. To the contrary, testimony was given that the scarified concrete was left with a visually textured surface, albeit described differently by the parties, and that this scarification process was not something that would be undone as it was necessary to bind and adhere the terrazzo flooring to its intended unsmoothed surface (see also Kinirons v. Teachers Ins. & Annuity Assn. of Am. , 34 AD3d 237 [1st Dept 2006] ).
Similarly, § 23-1.7 (e) (2) of the Industrial Code is inapplicable to this case because Rawald never testified that he tripped or fell and was injured due to dirt, debris, scattered tools and materials or a sharp projection. As previously noted, the divots, if one would describe the unsmoothed and textured scarified surface as such, was an integral part of the scarification work performed and was permanently placed in the floor area (see generally Lenard v. 1251 Ams. Assoc. , 241 AD2d 391 [1st Dept 1997] ; Thomas v. Goldman Sachs Headquarters, LLC , 109 AD3d 421, 422 [1st Dept 2013] ).
Labor Law § 200 and Common-Law Negligence
An owner may be liable under the common law or under Labor Law § 200 for a dangerous condition arising from either the condition of the premises or the means and methods of the work (see Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [1st Dept 2012] ). Labor Law § 200 (1) provides, in relevant part:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section."
Labor Law § 200 is the codification of the common-law duty to provide workers with a safe work environment, and its provisions apply to owners, contractors, and their agents (see Ross at 503 [1993] ). A mere allegation that a defendant was the owner, construction manager or an agent, however, is not enough to impose liability under Labor Law § 200. There are two distinct standards applicable to Labor Law § 200 cases, depending on the kind of situation involved: whether the injuries resulted from a dangerous condition, or from the means and methods by which the work was done (see Raffa v. City of New York , 100 AD3d 558, 558 [1st Dept 2012] ).
Here, plaintiffs allege a violation of Labor Law § 200 based upon the existence of a dangerous condition, namely a concrete ground surface with divots after scarification. When the accident arises from an alleged dangerous condition, the injured worker must demonstrate that the defendant had actual or constructive knowledge of the unsafe condition that caused the accident, or evidence that the owner created that unsafe condition ( Murphy v. Columbia University , 4 AD3d 200, 201 [1st Dept 2004] ). Only where a claim is made as to injuries stemming from the manner of work performed must there be some facts to demonstrate that the defendant had actual control and supervision over the injury producing work ( DaSilvia v. Haks Engrs., Architects & Land Surveyors, P.C. , 125 AD3d 480, 481 [1st Dept 2015] ; Suconota v. Knickerbocker Props., LLC , 116 AD3d 508, 508 [1st Dept 2014] ). Since there is no allegation that the injury stemmed from the manner of work performed (e.g. the scarification work), the court need not address the extent, if any, of control or supervision of the injury producing work.
The argument that Sea Crest had actual notice by reason of having scarified the concrete ground fails because the "notice" referred to by statute is the notice of the specific defective or hazardous condition. All parties were aware that the scarification process created a characteristically unsmoothed surface. However, an unsmoothed surface does not in and of itself constitute, or give notice of, a defect or hazard. Indeed, Rawald described the surface of the scarified floor area where the injury occurred as a "divot, for lack of a better description" (Rawald tr 110:4-10) and his statement that the surface appeared lunar did not transform the surface as he described it into a noticeable defect.
In order 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 the owner/employer to remedy the purported defect ( Gordon v. American Museum of Natural History, 67 NY2d 836 [1986] ). In addition, "constructive notice of the allegedly unsafe condition that caused the accident ... must call attention to the specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken" ( Mitchell v. New York Univ. , 12 AD3d 200, 201 [1st Dept 2004] ).
Although constructive notice that an alleged dangerous or hazardous conditions exists is one generally left to the trier of fact ( Espinosa v. Azure Holdings II, LP , 58 AD3d 287, 290 [1st Dept 2008] ), here the alleged defect, the surface of the scarified subject concrete ground, was a nonactionable, trivial condition (see generally , Trincere v. County of Suffolk , 90 NY2d 976, 977 [1997] ). Where a defect could have been avoided by a reasonably careful or prudent person, such defects are trivial and non-actionable ( Santiago v. United Artists Communications , 263 AD2d 407 [1st Dept 1999] ). Although there is no per se dimension in height or depth that would render a defect nonactionable, the "width, depth, elevation irregularity and appearance of the defect along with the time, place and circumstance of the injury" must be examined ( Trincere , 90 NY2d at 977-978 [internal quotation marks and citation omitted] ).
In the case before the court, Rawald never described the measurement of the divot area where the accident occurred, neither he nor anyone complained about the floor's depression after the scarification process, and the scarification process intentionally results in concrete depressions that were, according to Rawald, no more than two inches. Given the totality of the facts presented here, this court concludes as a matter of law that the alleged defect was trivial and did not rise to the level of being a dangerous or defective condition (see also Figuerora v. Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210 [1st Dept 1998] ). To be sure, courts have generally held that whether a defect was trivial is one for the trier of fact to determine ( Dominguez v. OCG, IV, LLC , 82 AD3d 434 [1st Dept 2011] ); but plaintiffs here did not oppose Sea Crest's argument that the purported defect was trivial and nonactionable.
Plaintiffs assert in conclusory fashion that contradictory or conflicting EBT testimony warrants a trial—but fail to specify which pieces of testimony contradict (or conflict with) one another. The mere unsupported claim of conflicting testimony is insufficient to satisfy the nonmoving party's burden on summary judgment to " ‘assemble, lay bare and reveal ... proofs in order to show that claims are real and capable of being established on trial’ " ( Schiraldi v. U.S. Min. Prods. , 194 AD2d 482, 483 [1st Dept 193], quoting Tobron Office Furniture Corp. v. King World Publs., Inc. , 161 AD2d 355 [1st Dept 1990] ).
Finally, plaintiff Maureen Rawald's derivative loss of consortium claim is dismissed. Dismissal of the primary claims in the Complaint must result in dismissal of derivative claims ( Kaisman v. Hernandez , 61 AD3d 565, 566 [1st Dept 2009] ).
Contractual Indemnification
"A party is entitled to full contractual indemnification provided that the ‘intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances’ " ( Drzewinski v. Atlantic Scaffold & Ladder Company, Inc. , 70 NY2d 774, 777 [1987], quoting Margolin v. New York Life Ins. Co. , 32 NY2d 149, 153 [1973] ; see also Karwowski v. 1407 Broadway Real Estate, LLC, 160 AD3d 82 [1st Dept 2018] ; Torres v. Morse Diesel Intl., Inc. , 14 AD3d 401, 403 [1st Dept 2005] ). "The right to contractual indemnification depends upon the specific language of the contract" ( Trawally v. City of New York , 137 AD3d 492, 492-493 [1st Dept 2011], quoting Alfaro v. 65 W. 13th Acquisition, LLC , 74 AD3d 1255, 1255 [2d Dept 2010] ). Indemnity contracts "must be strictly construed so as to avoid reading unintended duties into them" that the parties did not intend to assume ( 905 5th Assoc., Inc. v. Weintraub , 85 AD3d 667, 668 [1st Dept 2011] ).
Here, Indemnification Provision 14.05 (A) (2) of the Prime Contract is not applicable to this case because the Expansion Project was not completed and "accepted by the owner" until 2013 and the accident which is the subject of this litigation occurred in 2011. Indemnification Provision 14.05 (A) (3), on the other hand, would be applicable to the facts of this case because Rawald's injuries were "caused by, resulting from, arising out of, or occurring in connection with the execution of the work." And Indemnification Provision 14.05 (A) (3) does not violate GOL § 5-322.1 (voiding provisions that purport to provide indemnification for the indemnitee's own negligence), because it contains a "savings' clause" providing that "the Contractor shall not be obligated to indemnify the Owner, the Client, the Owner's Representative, Construction Manager, servants and employees for their own negligence, if any ( Radeljic v. Certified of NY, Inc. , 161 AD3d 588, 590 [1st Dept 2018] ["a savings clause limiting any indemnification to the extent permitted by law, does not violate General Obligations Law § 5—322.1"] ).
DASNY moved for summary judgment on its contractual and common-law indemnification from Sea Crest only in the alternative, should this court deny DASNY's motion for summary judgment on plaintiffs' negligence and Labor Law claims against it. As discussed above, DASNY has established that it is entitled to judgment as a matter of law on plaintiffs' claims against it. DASNY's summary-judgment motion on its claims for common-law and contractual indemnity against Sea Crest is therefore denied as academic.
DASNY contends that even if it is entitled to summary judgment with respect to plaintiffs' claims against it, DASNY should still be contractually indemnified by Sea Crest for DASNY's defense costs in the action. This contention, though, is not properly before the court because it was raised for the first time on reply. (See Alrobaia v. Park Lane Mosholu Corp., 74 AD3d 403, 404 [1st Dept 2010] ).) In any event, the contention contradicts the clear language of DASNY's notice of motion, which expressly frames DASNY's contractual indemnity claim as brought only in the alternative, should DASNY's summary judgment motion on the negligence claims be denied.
With respect to Sea Crest's motion for summary-judgment to dismiss Turner's contractual indemnity claim, this court does not agree with movant that the language of the relevant indemnity provision requires a predicate finding of negligent conduct by Sea Crest. Indemnity Provision 14.05 (A)(3) provides that Sea Crest "assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever ... caused by, resulting from, arising out of, or occurring in connection with the execution of the Work"—and also provides that this responsibility encompasses paying defense costs (including reasonable attorney fees) in connection with any claim for injuries. This contractual language is not limited to liability for injuries caused by negligent acts by Sea Crest.
As discussed above, the language of Indemnity Provision 14.05 (A)(3) also expressly excludes indemnification by Sea Crest for any injuries caused by Turner's own negligence. There is therefore no merit to Sea Crest's argument that Turner cannot obtain contractual indemnity from Sea Crest without first proving Turner's absence of negligence.
To the extent that Turner also seeks common-law indemnification from Sea Crest, that claim is dismissed in light of this court's conclusion, discussed above, that Sea Crest is entitled to summary judgment dismissing plaintiff's negligence and Labor Law claims against it.
Lastly, Turner's breach of contract claim against Sea Crest for failure to procure required insurance is denied because a copy of the pertinent insurance was provided by Sea Crest (Exhibit A to Sea Crest's reply papers in Motion Seq. No. 004).
Accordingly, it is hereby
ORDERED that the branch of DASNY's motion seeking summary judgment dismissing plaintiffs' negligence and Labor Law claims against it (motion sequence 003) is granted and plaintiffs' complaint is dismissed in its entirety as against said defendant, with costs and disbursements to DASNY as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the branch of DASNY's motion seeking summary judgment dismissing all cross-claims against it (motion sequence 003) is granted and all cross-claims against DASNY are dismissed; and it is further
ORDERED that the branch of DASNY's motion seeking summary judgment in its favor on its cross claims against Sea Crest for contractual and common-law indemnification (motion sequence 003) is denied as academic; and it is further
ORDERED that the branch of Turner Construction's motion seeking summary judgment dismissing plaintiffs' negligence and Labor Law claims against it (motion sequence 004) is granted and plaintiffs' complaint is dismissed in its entirety as against said defendant, with costs and disbursements to Turner Construction as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the branch of Turner Construction's motion seeking summary judgment dismissing all cross-claims against it (motion sequence 004) is granted and all cross-claims against Turner Construction are dismissed; and it is further
ORDERED that the branch of Sea Crest's motion seeking summary judgment dismissing plaintiffs' negligence and Labor Law claims against it (motion sequence 005) is granted and plaintiffs' complaint is dismissed in its entirety as against said defendant, with costs and disbursements to Sea Crest as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the branch of Sea Crest's motion seeking summary judgment dismissing Turner Construction's third-party claim for common-law indemnification against it (motion sequence 005) is granted, and the common-law indemnity claim is dismissed; and it is further
ORDERED that the branch of Sea Crest's motion seeking summary judgment dismissing Turner Construction's third-party claim for contractual indemnification against it (motion sequence 005) is denied; and it is further
ORDERED that the Clerk shall enter judgment accordingly.