Opinion
No. 2022-51443 Index No. 901667-19
11-18-2022
Keith R. Schoonover, Plaintiff, v. George C. Diaz, MARY R. VAZQUEZ, ALBANY DOWNTOWN HOTEL PARTNERS, LLC, BANYON INVESTMENT GROUP, INC. AND HOSPITALITY SPECIALIST, LLC, Defendants. Albany Downtown Hotel Partner, LLC, Third Party Plaintiff, v. Hospitality Specialist, LLC Third Party Defendant.
Powers & Santola, LLP Daniel R. Santola, Esq. Attorneys for Plaintiff Keith R. Schoonover. Law Office of Robert L. Hartford Jeffrey T. Culkin, Esq. Attorneys for Defendants George C. Diaz and Mary R. Vazquez. Goldberg Segalla, LLP William J. Greagan, Esq. Attorneys for Defendants and Third-Party Plaintiff Albany Downtown Hotel Partners, LLC and Banyon Investment Group, Inc. (No other appearances on the motions.)
Unpublished Opinion
Powers & Santola, LLP Daniel R. Santola, Esq. Attorneys for Plaintiff Keith R. Schoonover.
Law Office of Robert L. Hartford Jeffrey T. Culkin, Esq. Attorneys for Defendants George C. Diaz and Mary R. Vazquez.
Goldberg Segalla, LLP William J. Greagan, Esq. Attorneys for Defendants and Third-Party Plaintiff Albany Downtown Hotel Partners, LLC and Banyon Investment Group, Inc.
(No other appearances on the motions.)
Denise A. Hartman, J.
Hon. Denise A. Hartman Acting Justice.
Plaintiff Keith R. Schoonover moves for summary judgment on the issue of liability against defendants George C. Diaz and Mary R. Vazquez (hereinafter referred to collectively as the driver defendants) on his common-law negligence cause of action, and against defendants Albany Downtown Hotel Partners, LLC and Banyon Investment Group, Inc. (hereinafter referred to collectively as the owners) on his Labor Law § 241 (6) claim. The driver defendants oppose plaintiff's motion and cross-move to dismiss the owners' cross claims for common-law indemnification. The owners oppose both motions and cross-move to dismiss plaintiff's complaint and the driver defendants' cross claims for contractual and common-law indemnification and contribution.
For the reasons that follow, plaintiff is granted summary judgment on the issue of liability on his negligence claim against the driver defendants; plaintiff is granted summary judgment on the issue of liability on his Labor Law § 241 (6) claim against the owners; the owners' cross motion to dismiss plaintiff's common-law negligence and Labor Law § 200 claims is denied; the driver defendants' motion to dismiss the owners' cross claim for common-law indemnification is granted; the owners' motion to dismiss the driver defendants' cross claim for common-law indemnification is granted; and the owners' motion to dismiss the driver defendants' cross claim for contribution is denied.
Procedural Background
On March 21, 2019, plaintiff commenced this personal injury action arising out of a pedestrian and motor vehicle accident that occurred on March 29, 2016 in the rear parking lot of the Hampton Inn hotel, located at 25 Chapel Street, Albany, New York (hereinafter the hotel), during renovations to the external façade of the building. Plaintiff alleges that defendant George C. Diaz (hereinafter Diaz), an employee of the hotel who worked in the laundry department, negligently operated a private vehicle owned by defendant Mary R. Vazquez, striking plaintiff and causing him injury. The hotel is owned by defendant Albany Downtown Hotel Partners, LLP, which is owned by defendant Banyon Hospitality Services. Defendant Hospitality Specialist, LLC was the general contractor on the renovation project. And plaintiff was employed by non-party Brock Logistics, LLC/Abuddell Industries, a subcontractor on the renovation project.
Defendant Mary R. Vazquez died on June 20, 2021. On March 11, 2022, the Surrogate's Court, Albany County (Petit, J.) issued a decree granting Limited Letters of Administration to Susan A. Rizzo for the limited purpose of appearing as a party in this action.
Plaintiff asserts the following causes of action. Against the driver defendants, plaintiff asserts a cause of action for common-law negligence. Against the owners and Hospitality Specialist, LLC, plaintiff asserts causes of action for common-law negligence, violation of Labor Law § 200, and violation of Labor Law § 241 (6).
On March 28, 2021, Albany Downtown Hotel Partners, LLC filed a third-party summons and complaint against Hospitality Specialist, LLC, as contractor, seeking contractual indemnification and/or contribution. On April 19, 2019, Albany Downtown Hotel Partners, LLC answered and, on May 7, 2019, it filed an amended answer. Albany Downtown Hotel Partners, LLC asserted several affirmative defenses, a cross claim against the driver defendants for contribution and/or common-law indemnification, and a cross claim against Hospitality Specialist, LLC for contractual and/or common-law indemnification and/or contribution.
On May 7, 2019, Banyon Investment Group, Inc. answered and asserted several affirmative defenses, a cross claim against the driver defendants for contribution and/or common-law indemnification, and a cross claim against Hospitality Specialist, LLC for contractual and/or common-law indemnification and/or contribution.
On June 6, 2019, the driver defendants answered, asserted several affirmative defenses and cross claims against the owners and Hospitality Specialists, LLC for common-law and/or contractual indemnification or contribution.
On July 15, 2021, Albany Downtown Hotel Partners, LLC filed a third-party summons and complaint against CEPAT, Inc., but on December 1, 2021 Albany Downtown Hotel Partners LLC discontinued that third-party action.
By notice of motion dated August 2, 2021, Albany Downtown Hotel Partners, LLC moved for a default judgment against Hospitality Specialist, LLC on the third-party complaint. By order dated September 20, 2021, the Court granted the motion as unopposed and ordered Hospitality Specialist, LLC to indemnify Albany Downtown Hotel Partners, LLC for any judgment rendered against, or settlement made on the behalf of, Albany Downtown Hotel Partners, LLC.
Discovery is complete, and plaintiff has filed a note of issue. By notice of motion dated May 17, 2022, plaintiff moved for summary judgment on the issue of liability against the driver defendants on his negligence claim, and against the owners on his Labor Law § 241 (6) claim (Motion #2). On June 17, 2022, the driver defendants opposed plaintiff's motion and cross-moved for summary judgment dismissing the owners' cross claims for common-law indemnification (Motion #3). On August 12, 2022, the owners opposed both motions and cross-moved for summary judgment dismissing the complaint and the driver defendants' cross claims for contractual and common-law indemnification and contribution (Motion #4).
Factual Background
On March 29, 2016, plaintiff was a member of a work crew tasked with installing a new decorative façade at the top of the hotel, including new signs and associated roof work. The renovation project was the subject of a contractor agreement between Hospitality Specialist, LLC, as general contractor, and Albany Downtown Hotel Partners, LLC, as owner. Plaintiff's employer, Brock Logistics, LLC/Abuddell Industries, was a subcontractor of Hospitality Specialist, LLC.
Directly behind and adjacent to the hotel is a parking lot used by members of the public as well as employees and hotel patrons. Plaintiff's work involved, among other things, moving equipment through and about the parking lot and positioning the equipment to access areas where the work was being performed. The contractors stored some of their tools and equipment in the parking lot, including two basket lifts, which they needed to use to reach the upper portions of the building.
On the day of accident, defendant Diaz drove a 2014 Kia Optima owned by his girlfriend's mother, defendant Vazquez, to the hotel. He parked the car in an open parking space located directly next to the rear entrance of the hotel and began his shift. A little while later, a hotel valet asked Diaz to move the car. Diaz exited the rear of the hotel and went outside to move his car to a different location in the parking lot. During this time, plaintiff was directing the project's foreman David Maddox while he maneuvered a lift through the parking lot. As Diaz reversed his vehicle out of the parking spot, he struck plaintiff with the rear of the vehicle, causing him injury.
Analysis
On a motion for summary judgment, the movant "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The evidence produced must be viewed in the light most favorable to the nonmoving party (see Framan Mech., Inc. v State Univ. Constr. Fund, 182 A.D.3d 947, 948 [3d Dept 2020]).
Plaintiff Is Granted Summary Judgment on this Issue of Liability on His Negligence Claim Against the Driver Defendants.
Drivers have a common-law duty "to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" (Kreis v Kiyonaga, 200 A.D.3d 1144, 1146 [3d Dept 2021] [internal quotation marks, brackets, and citations omitted]; see Strassburg v Merchants Auto. Group, Inc., 203 A.D.3d 1735, 1735-1736 [4th Dept 2022]). "[I]t is well settled that a defendant's unexcused violation of the Vehicle and Traffic Law constitutes negligence per se" (Holownia v Caruso, 183 A.D.3d 1035, 1036 [3d Dept 2020] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 902 [2020]). And liability will attach so long as the "violation was a proximate cause of the accident" (Holownia v Caruso 183 A.D.3d at 1036).
Plaintiff submitted, among other things, his own deposition testimony and affidavit, and the deposition testimony of defendant Diaz. According to plaintiff, he had expressed concerns about the workers' safety while working in the parking lot, as it was still being used for parking by hotel and restaurant patrons and for valet services. Plaintiff recalled speaking to Mohamed Hemmid, the General Manager of the hotel, about his concern that the valets in particular drove too aggressively.
On March 29, 2016, plaintiff was assigned to perform work on the upper portion of the hotel façade, which required use of one of the lifts. Because it was windy that day, there were some discussions between foreman Maddox and Mr. Hemmid regarding whether it was safe to continue their work requiring use of the elevated lifts. According to foreman Maddox, they were behind on the project and were being pushed to finish as soon as possible. He testified that Mr. Hemmid "argued that it was safe enough and that [they] needed to continue working," so Mr. Maddox agreed to go up in one of the lifts to survey whether it was safe to use the elevated lift, given the weather conditions.
When not in use, the lift was stored at the far end of the rear parking lot. Mr. Maddox climbed into the basket of one of the self-propelled motorized lifts and began driving it toward the building where they needed to perform work. Plaintiff testified that, as Mr. Maddox was driving the lift, it was his job "to direct [Maddox] as [the lift] travelled through the parking lot." To guide Mr. Maddox, plaintiff stayed approximately five feet from the front tire of the lift. Plaintiff stated that they had a flag available on the worksite, but he did not recall whether he was using a flag to direct Mr. Maddox that day. Plaintiff "was facing the front of the equipment giving [him] signals... as [plaintiff] was walking backwards in the same direction [Maddox] was driving the equipment."
As plaintiff was "walking backwards through the parking lot, [he] was struck by a vehicle that backed up from one of the parking spaces[,] knocking [him] to the ground and causing injuries." According to plaintiff, "[a]t no time did [he] see or realize the car was about ready to back up in the direction [he] was standing." And "there were no fences or barricades or other person to direct non-construction vehicles away from the work areas." Plaintiff testified that he never saw Diaz before the accident; the lift alarm was sounding, and he never saw or heard the vehicle coming toward him before it struck him from behind.
Defendant Diaz testified as follows. In March 2016, he was employed by the hotel and worked in the laundry room. On March 29, 2016, upon arriving for his shift, he parked directly adjacent to the rear entrance of the hotel, up against the building. Because the hotel had valet services, the parking spots nearest the building are long enough to park several vehicles in a row. Later that morning, one of the valets found him in the hotel and asked him to move his vehicle elsewhere. Defendant went into the parking lot to move his car. There was no vehicle parked directly behind him and there were two cars parked in the spot to the right of him as he faced the building. According to defendant, as he exited the building, he non-verbally signaled to plaintiff with his hand that he was getting into his car, and plaintiff nodded in response. Defendant took this as acknowledgement and permission to move the car.
Defendant stated that he got in his car, started the engine, checked all three mirrors, physically turned to look behind him, and did not see plaintiff. Defendant stated that, at the time, he thought plaintiff had moved off to the side. He eased off his brake and began slowly backing up. He had barely moved, perhaps one foot, when he struck plaintiff with the rear of his vehicle. Defendant speculated that perhaps plaintiff had leaned down, and that is why he did not see him. As a result of the accident, defendant was ticketed with, and pleaded guilty to, unsafe backing in violation of Vehicle and Traffic Law § 1221 (a), which provides: "The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic."
With the foregoing, plaintiff met his burden of establishing prima facie entitlement to summary judgment on the issue of the driver defendants' liability on his negligence cause of action. Plaintiff's submissions show that Diaz backed his vehicle into plaintiff, who was standing directly behind the vehicle with his back to him (see Rodriguez v City of New York, 161 A.D.3d 575, 576-577 [1st Dept 2018]; Garcia v Verizon NY, Inc., 10 A.D.3d 339, 340 [1st Dept 2004]). Diaz was aware that plaintiff was standing in the general vicinity behind the vehicle in the moments preceding the accident, but he did not confirm plaintiff's location before backing up. And Diaz pleaded guilty to unsafe backing, establishing negligence per se. Thus, the burden shifts to the driver defendants to provide a non-negligent explanation for the accident (see Rodriguez v City of New York, 161 A.D.3d at 577).
The driver defendants argue that Diaz's guilty plea to unsafe backing is not dispositive and there are issues of fact with regard to plaintiff's own negligence. But Diaz's testimony that he checked his mirrors and looked over his shoulder before the accident does not constitute a legal excuse for his negligent conduct negating the presumption of negligence created by his guilty plea to the traffic violation of unsafe backing (see Salodkaya v City of New York, 193 A.D.3d 604, 605 [1st Dept 2021]; Pries-Jones v Time Warner Cable, Inc., 93 A.D.3d 1299, 1301 [4th Dept 2012]). And Diaz's testimony that plaintiff may have bent down out of his view is speculative and insufficient to raise a question of fact (see Velasquez v MTA Bus Co., 132 A.D.3d 485, 485 [1st Dept 2015]). With regard to whether plaintiff was himself negligent, plaintiffs are no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability (see Rodriguez v City of New York, 31 N.Y.3d at 317-325). And the driver defendants have otherwise failed to raise issues of fact requiring a trial. Accordingly, plaintiff is granted summary judgment on his common-law negligence cause of action against the defendant drivers on the issue of liability.
Plaintiff Is Granted Summary Judgment on the Issue of Liability on His Labor Law § 241 (6) Claim Against the Owners.
"Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Toussaint v Port Auth. of NY & N.J., 38 N.Y.3d 89, 93 [2022] [internal quotation marks and citations omitted]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 [1993]; Edwards v State Univ. Constr. Fund, 196 A.D.3d 778, 784 [3d Dept 2021]; Duffina v County of Essex, 111 A.D.3d 1035, 1038 [3d Dept 2013]). To establish a cause of action under Labor Law § 241 (6), "a plaintiff must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence" (Copp v City of Elmira, 31 A.D.3d 899, 899 [3d Dept 2006]; accord Duffina v County of Essex, 111 A.D.3d at 1038; Lynch v 99 Washington, LLC, 80 A.D.3d 977, 978 [3d Dept 2011]).
Plaintiff alleges that the owners violated 12 NYCRR 23-1.29 (a), which provides: "Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons."
Plaintiff established prima facie entitlement to summary judgment on the issue of the owners' liability. Plaintiff established that plaintiff was engaged in construction work at the time of this accident; the parking lot where the accident occurred was open to public traffic; the area where plaintiff was working was not fenced or barricaded to direct public vehicular traffic away from the contractors, nor was there a person designated to control the flow of traffic; and such violation was causally related to the accident.
Defendant owners argue that 12 NYCRR § 23-1.29 is inapplicable to the facts because (1) plaintiff's accident occurred in a parking lot, not a public road; and (2) in any event, plaintiff was the "designated person" to control traffic under 12 NYCRR 23-1.29 (a), as defined by 12 NYCRR § 23-1.29 (b). Defendant owners submitted the expert affidavit of John Coniglio, the Managing Director and Principal Consultant of Occupational Safety & Environmental Association, Inc. (OSEA). According to Mr. Coniglio, he is a practicing safety professional with over 40 years of experience in construction. In rendering his expert opinion, Mr. Coniglio reviewed the pleadings, bills of particular, the parties' deposition testimony, and photographs of the subject parking lot. With regard to the applicability of 12 NYCRR § 23-1.29, Mr. Coniglio opined "within a reasonable degree of Certified Professional Safety certainty that 12 NYCRR 23-1.29 (a) was not violated as the accident occurred in the back parking lot of [the hotel], not on a street, road, or highway, or in close proximity to a street, road or highway where public traffic would be expected." And Mr. Coniglio opined: "Clearly, [p]laintiff was the designated 'spotter,' pursuant to 12 NYCRR 23-1.29 (b), when the incident occurred." In forming this opinion, Mr. Coniglio noted plaintiff's testimony that foreman Maddox was in the basket of the lift in the front of the machine as it was moving forward, and plaintiff "was directing/guiding Mr. Maddox and they were going to position the lift." Mr. Coniglio further opined that, as the designated spotter, plaintiff "was too close to the lift to properly observe conditions around him and failed to properly position himself in a position to observe the area and signal the operator while keeping others away from the moving equipment."
The Court finds unavailing the owners' assertion that 12 NYCRR 23-1.29 does not apply to the parking lot where plaintiff's accident occurred. Mr. Coniglio's opinion regarding the inapplicability of 12 NYCRR 23-1.29 constitutes an impermissible expert opinion as to a legal conclusion and is therefore lacking in probative value (see Pomilla v Bangiyev, 197 A.D.3d 1187, 1188 [2d Dept 2021]; Schulz v Cuomo, 133 A.D.3d 945, 948 [3d Dept 2015], appeal dismissed 26 N.Y.3d 1139 [2016], lv denied 27 N.Y.3d 907 [2016]). Furthermore, such opinion is without support in the record. The safety provisions of 12 NYCRR 23-1.29 apply where construction work is being done "over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work" (emphasis added). The parking lot of the hotel was open to public vehicular traffic, including patrons and employees of the hotel. The parking lot therefore falls within the catch-all phrase of 12 NYCRR 23-1.29, "where public vehicular traffic may be hazardous to the persons performing such work."
Notably, the prohibition in Vehicle and Traffic Law § 1211 (a) against unsafe backing, for which Diaz was ticketed and pleaded guilty, applies to "public highways, private roads open to public motor vehicle traffic and any other parking lot, except where a different place is specifically referred to in a given section" of the Vehicle and Traffic Law (§ 1100 [a]). Vehicle and Traffic Law § 129-b defines a "parking lot" as "[a]ny area or areas of private property near or contiguous to and provided in connection with premises having one or more stores or business establishments, and used by the public as a means of access to and egress from such stores and business establishments and for the parking of motor vehicles of customers and patrons of such stores and business establishments."
The owners have also failed to raise issues of fact regarding whether plaintiff was acting as the "designated person" to control vehicle traffic under 12 NYCRR 23-1.29 (a), which provides that, when construction work is being performed near traffic, "such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons." 12 NYCRR § 23-1.29 (b) further provides:
"Every designated person authorized to control public vehicular traffic shall be provided with a flag or paddle measuring not less than 18 inches in length and width. Such flag or paddle shall be colored fluorescent red or orange and shall be mounted on a suitable hand staff. Such designated person shall be stationed at a proper and reasonable distance from the work area and shall face approaching traffic. Such person shall be instructed to stop traffic, whenever necessary, by extending the traffic flag or paddle horizontally while facing the traffic. When traffic is to resume, such designated person shall lower the flag or paddle and signal with his free hand."
Mr. Coniglio's opinion that plaintiff was acting as the designated flagger is unsupported by the record. At his deposition, plaintiff testified that he thought a flag was available on the worksite, but he did not recall whether he was using one to direct foreman Maddox. There is no description of the flag, and plaintiff did not testify that it was his designated job to direct vehicle traffic away from the construction area. Rather, plaintiff testified that he was walking backwards, facing Mr. Maddox in the lift, while directing him as he navigated through parking lot. His focus was on safely directing Mr. Maddox in the lift, not on monitoring and directing vehicular traffic in the parking lot. And there is no evidence to suggest that plaintiff was assigned to work as the designated flagger or instructed on how to properly direct vehicular traffic.
Furthermore, plaintiff submitted in opposition to the owners' cross motion the affidavits of plaintiff and foreman Maddox, which dispelled any argument that plaintiff may have been a designated flagger. Plaintiff averred:
"At no time on this job site was I ever acting as a 'designated flagger' or a 'traffic control person' or 'directing traffic.... My job was to assist David Maddox getting from the area in the [h]otel's parking lot to the back wall of the building next to the rear entrance/exit of the hotel. The parking lot was filled with several parked cars which made maneuvering the lift through the lot, without hitting any cars, difficult for Maddox. My job was to help guide him through the parking lot maze. I was also trying to make sure that anyone leaving the [h]otel would not accidentally walk in front of the moving lift."
Plaintiff also clarified his deposition testimony regarding the flag: "I was asked if I either had a flag or if I was using one. I believe that there were flags on the job site but I do not recall that I was using one or needed one to guide Maddox's operation of the lift."
Mr. Maddox averred that the "motorized lift is operated by controls inside the basket which makes it difficult for the operator to see how close the lift is to adjacent vehicles and other obstacles when driving in tight spaces." So, "[t]o help [him] avoid hitting anything while [he] drove the lift through the lot, [he] asked [plaintiff] to help guide [him] through the parking lot and into the spot where we needed to set up the lift." "Neither [he nor] anyone else, assigned or otherwise directed [plaintiff] to act as a flagger or to control the vehicles driving through the parking lot." Plaintiff's "sole task was to guide [Mr. Maddox] through the use of hand signals through the tight spaces [he] needed to move through." Plaintiff "was not a designated person to control traffic [or] flagger" and he was "not given any flag to complete this task since [they] communicated by using hand signals."
In light of the foregoing, the Court grants plaintiff summary judgment on the issue of liability for his claim against the owners for violating their nondelegable duty under Labor Law § 241 (6).
The Owners' Cross Motion to Dismiss Plaintiff's Common-Law Negligence and Labor Law § 200 Claims Is Denied.
The owners cross-move to dismiss plaintiff's common-law negligence and Labor Law § 200 claims on the grounds that the owners did not exercise any supervision or control over the worksite, and the accident arose from the methods of the plaintiff's employer's work. "Labor Law § 200 codifies the common-law duty imposed upon owners and general contractors to maintain a safe work site" (Card v Cornell Univ., 117 A.D.3d 1225, 1226 [3d Dept 2014]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Edwards v State Univ. Constr. Fund, 196 A.D.3d 778, 780 [3d Dept 2021] [internal quotation marks and citations omitted]; see Card v Cornell Univ., 117 A.D.3d at 1226). "An owner who retains control of the premises may be liable for injuries resulting from a dangerous condition at the work site only if the owner 'created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time'" (Edwards v State Univ. Constr. Fund, 196 A.D.3d at 780-781, quoting Harrington v Fernet, 92 A.D.3d 1070, 1071 [3d Dept 2012]). "Where... the injury derives from unsafe work practices, an owner or general contractor may be held liable only upon 'a showing of supervisory control and actual or constructive knowledge of the unsafe manner of performance'" (Edwards v State Univ. Constr. Fund, 196 A.D.3d at 781, quoting Card v Cornell Univ., 117 A.D.3d at 1226).
Here, the parties disagree as to whether the accident was caused by the unsafe methods employed by the contractors or by a dangerous condition resulting from the active vehicular traffic in the parking lot. But regardless of how it is framed, plaintiff has raised issues of fact regarding whether the owners had supervisory control and actual or constructive knowledge of the danger created by the vehicular traffic in and around the construction area.
The owners submitted the affidavit of Mohammed Hemmid, the General Manager of the hotel. Mr. Hemmid averred that the owners "did not direct or supervise any of the construction[] workers on the project or provide them with any instruction on how to perform their work or regarding any of the methods or means of the... construction work or any of the contractors performing construction work being performed on the [h]otel." And the owners "did not provide any equipment or any materials to any of the contractors or subcontractors regarding the project." According to Mr. Hemmid, on March 29, 2016, he had a conversation with Mr. Maddox "regarding whether work should be performed due to the weather conditions." But he "advised [Mr. Maddox] that ultimately the decision regarding whether to perform construction work was up to him." And, Mr. Hemmid averred, the owners "did not exercise or possess any supervision or control over the construction project, any of the contractors, or any of the work performed by the contractors during the entire construction project." Assuming, without deciding, that the traffic situation in and around the construction site constituted an unsafe work practice, as opposed to a dangerous condition on the property, Mr. Hemmid's affidavit puts forth facts establishing prima facie that the owners had no supervisory control over the project.
But plaintiff's submissions raise issues of fact regarding both whether the owners had notice of the danger posed by the continued use of the parking lot for employee and public parking, and whether the owners retained some supervisory control over the project. According to plaintiff, the parking lot was busy and created a hazardous condition for the construction workers. In his affidavit in opposition to defendant owners' cross motion, plaintiff averred:
"[The hotel's] parking lot has approximately 70-80 parking spaces for use by members of the public who are staying at the hotel, employees and staff of the [h]otel. Employees and guests are given a card by which they can access the parking lot at the automated gate.... Additionally, there is also valet parking where up to some 30 vehicles can be tripled parked in the lot immediately adjacent to the back wall of the [h]otel. Besides traffic coming off the street by the [h]otel guest[s] and their staff[,] there is also a [h]otel restaurant which is open to the public.
On the day of the accident there was also several other contractors with their equipment and trucks as well as delivery vehicles. The number of vehicles in the lot and the various drivers from [h]otel guest[s], restaurant patrons, valet drivers, construction vehicles and delivery vehicles created a hazardous situation for all construction workers required to work in the parking lot. This was a constant problem of which I did complain to Mohamed [Hemmid], the general manager [of the hotel], but nothing was done to control the traffic in the parking lot."
And Mr. Maddox echoed plaintiff's concerns. Mr. Maddox averred:
"Because the hotel was still open to the public during the construction work, we were required to use the parking lot as a staging/storage area while hotel staff, customers and delivery people were constantly moving vehicles in and out of the lot creating a situation where there was literally no separation between the construction work site and the vehicles moving in and out of the parking spaces.
The movement of vehicles around the parking lot presented a hazard to the various construction workers while we were working in the lot. Often the cars were being driven too fast and were moving through the very places we were required to work.
Many times, we had to ask Mohamed [Hemmid] to get vehicles away from the spots we needed to set the lift up in and often complained to him about the hazards that the vehicles were creating driving through the very places we needed to work in."
With the foregoing, plaintiff raised issues of fact regarding whether the owners had actual or constructive knowledge of the danger created by the continued vehicular traffic in and around the construction area - a situation over which the owners clearly had control, and apparently failed to address. And Mr. Maddox's testimony raises issues of fact regarding whether the owners retained some supervisory control over the project itself. Mr. Maddox testified that that they were behind on the project and were being pushed by hotel management to finish as soon as possible: Mr. Hemmid "argued that it was safe enough" for them to use the lifts on the day of the accident, regardless of the wind, "and that [they] needed to continue working."
For these reasons, the Court denies the owners' motion for summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims against them.
The Driver Defendants and the Owners' Cross Claims for Common-Law Indemnification Are Dismissed.
The driver defendants and the owners cross-move for summary judgment dismissing each other's claims for common-law indemnification. Both motions are granted.
Although the owners also move to dismiss the driver defendants' cross claim for contractual indemnification, the parties do not directly address this claim in their motion papers. In any event, there is no allegation of any sort of contractual relationship between the owners and the driver defendants. Thus, to the extent asserted, the driver defendants' cross claim for contractual indemnification is dismissed.
"The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 A.D.3d 1242, 1244 [4th Dept 2012], quoting 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 A.D.2d 75, 80 [1st Dept 1999]; see D'Ambrosio v City of New York, 55 N.Y.2d 454, 460-461 [1982]; McDermott v City of New York, 50 N.Y.2d 211, 217 [1980], rearg denied 50 N.Y.2d 1059 [1980]). "The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor" (O'Toole v Marist Coll., 206 A.D.3d 1106, 1111 [3d Dept 2022] [internal quotation marks and citations omitted]). "Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine" (Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 A.D.3d at 1244-1245 [internal quotation marks and citations omitted]). "As the Court of Appeals has held, common-law indemnification is generally available in favor of one who is held responsible solely by operation of law because of his [or her] relation to the actual wrongdoer" (O'Toole v Marist Coll., 206 A.D.3d at 1111 [internal quotation marks, brackets, and citations omitted]; see McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 375 [2011]; Mas v Two Bridges Assoc., 75 N.Y.2d 680, 690 [1990]).
The owners' motion to dismiss the driver defendants' cross claims for indemnification against them is granted. The Court has now granted plaintiff summary judgment on his negligence claim against the driver defendants for failing to exercise due care in backing out of the parking spot. And the driver defendants have not posited any theory under which they could be held vicariously or statutorily liable for any wrongdoing of the owners (see TOV Mfg., Inc. v Jaco Import Corp., 123 A.D.3d 477, 478 [1st Dept 2014] ["A party sued solely for its own alleged wrongdoing, rather than on a theory of vicarious liability, cannot assert a claim for common-law indemnification"] [internal quotation marks, citations, and brackets omitted]; see also Stewart Tit. Ins. Co. v New York Tit. Research Corp., 178 A.D.3d 618, 619 [1st Dept 2019]; Harrington v Fernet, 92 A.D.3d 1070, 1071-1072 [3d Dept 2012]). Thus, the driver defendants have not asserted a viable claim for indemnification against the owners, and the owners' motion to dismiss their cross claim for indemnification is granted.
To the extent that plaintiff's claims for negligence and under Labor Law § 200 may proceed, based on the owners' alleged wrongdoing, such claims would not give rise to indemnification in any event.
Turning to the driver defendants' motion to dismiss the owners' indemnification cross claim against them, that motion is likewise granted. It is true that plaintiff alleged, and the Court has now found, that the owners are liable for violating their non-delegable duty under Labor Law § 241 (6), regardless of their own wrongdoing. And indemnification may be appropriate where there is a predicate for finding vicarious or statutory liability involving claims under that statute. But plaintiff asserts Labor Law § 241 (6) claims only against the owners and the general contractor Hospitality Specialist, Inc., not the defendant drivers. And the Court previously granted Albany Downtown Hotel Partner, LLC's motion for default judgment against Hospitality Specialist, LLC and ordered Hospitality to indemnify Albany Downtown Hotel Partners, LLC for the amount of any settlement or judgment rendered against it. In contrast, plaintiff has not asserted a claim against the owners based on vicarious liability for the wrongdoing of the defendant driver. Absent such a claim, the owners cannot assert a viable claim for indemnification against the driver defendants, and that cross claim must also be dismissed.
The Owners' Cross Motion to Dismiss the Driver Defendants' Claim for Contribution Is Denied.
CPLR 1401 provides that, with exceptions not relevant here, "two or more persons who are subject to liability for damages for the same personal injury... may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought" (CPLR 1401; see Wheeler v Citizens Telecom. Co. of NY, Inc., 71 A.D.3d 1218, 1219-1220 [3d Dept 2010]).
Again, plaintiff's claims against the driver defendants and the owners are based on their own, respective direct negligence. While Diaz's guilty plea to unsafe backing is evidence of his own negligence, "'more than one proximate cause' of an accident may exist" (Durr v Capital Dist. Transp. Auth., 198 A.D.3d 1238, 1241 [3d Dept 2021], quoting Giannelis v BorgWarner Morse TEC Inc., 167 A.D.3d 1185, 1187 [3d Dept 2018]). And the owners have not established as a matter of law that Diaz was the sole proximate cause of the accident. Said another way, the owners have not established that their own conduct was not a proximate cause of plaintiff's injury, thereby eliminating all factual bases upon which the finder of fact might rationally apportion fault (see Wheeler v Citizens Telecom. Co. of NY, Inc., 71 A.D.3d at 1220). Accordingly, the owners' motion for summary judgment dismissing the driver defendants' claim for contribution is denied.
Accordingly, it is
Ordered that plaintiff is granted summary judgment on the issue of liability on his common-law negligence claim against the driver defendants; and it is
Ordered that plaintiff is granted summary judgment on the issue of liability on his Labor Law § 241 (6) claim against the owners; and it is
Ordered that the owners' cross motion to dismiss plaintiff's common-law negligence and Labor Law § 200 claims against the owners is denied; and it is
Ordered that the driver defendants' motion to dismiss the owners' cross claim for common-law indemnification against them is granted; and it is
Ordered that the owners' motion to dismiss the driver defendants' cross claim for common-law indemnification against them is granted; and it is
Ordered that the owners' motion to dismiss the driver defendants' cross claim against them for contribution is denied.
This constitutes the Decision and Order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for plaintiff shall promptly serve notice of entry on all other parties entitled to such notice.
Papers Considered
NYSCEF Doc No 60-80; 84-97; 104-141.