Opinion
17472/2009
03-01-2012
Steven Scott AND MARTA SCOTT, Plaintiffs, v. 122 East 42 Street LLC, STAHL REAL ESTATE CO., HENEGAN CONSTRUCTION COMPANY, INC., HENICK-LANE INC., and ADRIA INDUSTRIAL PIPING LTD., , Defendants.
For the Plaintiffs: Schwartz, Goldstone & Campisi, LLP, by Mordecai T. Schwartz, David A. Kates, and Alan J. Plumer, Esqs. For Defendant Henick-Lane, Inc.: Morenus, Conway, Goren & Brandman, by Frank R. Matozzo, Esq. For Defendant Adria Industrial Piping, Ltd.: O'Conner, Redd LLP, by Alak Shah, Esq. For Defendant Henegan Construction Company, Inc.: Law Office of Andrea G. Sawyers, by David R. Holland, Esq. For Defendant 122 East 42 Street LLC and Stahl Real Estate Co.: Carroll, McNulty & Kull LLC, by Michael R. Schneider and David H. Bavli, Esqs. For Second Third-Party Defendant Chemical Specifics, Inc. : Martyn, Toher & Martyn, by Frank B. Toher, Esq.
Appearances of Counsel:
For the Plaintiffs: Schwartz, Goldstone & Campisi, LLP, by Mordecai T. Schwartz, David A. Kates, and Alan J. Plumer, Esqs.
For Defendant Henick-Lane, Inc.: Morenus, Conway, Goren & Brandman, by Frank R. Matozzo, Esq.
For Defendant Adria Industrial Piping, Ltd.: O'Conner, Redd LLP, by Alak Shah, Esq.
For Defendant Henegan Construction Company, Inc.: Law Office of Andrea G. Sawyers, by David R. Holland, Esq.
For Defendant 122 East 42 Street LLC and Stahl Real Estate Co.: Carroll, McNulty & Kull LLC, by Michael R. Schneider and David H. Bavli, Esqs.
For Second Third-Party Defendant Chemical Specifics, Inc. : Martyn, Toher & Martyn, by Frank B. Toher, Esq.
Charles J. Markey, J.
Notices of Motions - Affidavits - Exhibits.................................................................1 - 8
Notices of Cross Motions - Affidavits - Exhibits ...........................................9 - 21
Answering Affidavits - Exhibits......................................................................22- 53
Reply Affidavits...............................................................................................54 - 70
This complex Labor Law case, involving numerous parties and third-party litigants, developed after the plaintiff worker slipped on a hose left on an "I" beam. One of the interesting and novel issues is whether the existing hose laying on the "I" beam of the roof constitutes a "premises condition," triggering one liability standard, or whether it instead implicates the "means and methods" of the contractor's work, thereby involving a different yardstick for determining liability.
Plaintiffs in this negligence and Labor Law action seek damages for personal injuries sustained by plaintiff Steven Scott (hereinafter referred to either as "the plaintiff" or "the injured plaintiff") on May 7, 2007, while in the course of his employment with Chemical Specifics, Inc. ("Chemical"). The action by Marta Scott is derivative. Plaintiffs allege that while the injured plaintiff stood on an "I" beam reaching toward an air conditioning unit, he slipped on a hose lying across the "I" beam and fell several feet to the roof surface. The accident happened at 122 East 42nd Street ("122 East'), in New York City ("the building"), which is owned by defendant 122 East. Stahl Real Estate Co. ("Stahl") was the managing agent of the building. Freddie Mac was a tenant of the property at the time and contracted Henegan Construction Company, Inc. ("Henegan") to serve as general contractor for the construction project. Henegan contracted Henick-Lane Inc. ("Henick-Lane") to construct the HVAC component of the renovation work. Henick-Lane, in turn, contracted Adria Industrial Piping, Ltd. ("Adria") to conduct pressure testing, and contracted Chemical to flush chemically (hereinafter "clean") the newly-installed piping for the air conditioning units.
In the bill of particulars, the injured plaintiff asserts that he was caused to fall off an elevation as a result of obstructions and a tripping condition. The injured plaintiff further asserts, in the bill of particulars, that Henegan was negligent in the operation, maintenance, control, supervision and direction of the premises in that it failed to provide plaintiff with a safe place to work and failed to provide him with proper and approved safety devices. Plaintiffs allege common law negligence and violations of Labor Law sections 200, 240(1) and 241(6). In support of Labor Law section 241(6), the plaintiffs claim that defendants violated the following sections of the New York State Industrial Code: 12 NYCRR 23-1.5; 23-1.7; 23-1.8; 23-1.16; 23-1.21; 23-1.22; 23-1.24; 23-1.32; 23-2.1; 23-2.3 and 23-2.62 The Facts
The injured plaintiff testified that, at the time of the incident, he was employed as a mechanic's helper for Chemical. That day, he was to assist co-worker "Johnny Morales" at the building in question. Plaintiff's employer had assigned them to clean chemically the piping of a newly-installed air conditioning unit located on the roof of the building. After arriving at the premises around 7:30 A.M., plaintiff spoke with some steam-fitters. The steam-fitters were pressure testing the same air-conditioning unit pipes that the injured plaintiff was assigned to flush chemically. He was told that the job was not ready for him yet since the pipes were still being pressure tested for leaks.
Plaintiff and his partner returned to their truck, had breakfast and were later told that the pipes were ready to be cleaned chemically. The air-conditioning unit that plaintiff was going to work on was situated on top of several "I" beams that were elevated three or four feet above the roof surface. The floor of the roof was covered in plywood sheet and was "uneven" in that "the wood wasn't tacked to the ground" so plaintiff felt that if he stood on one side, "the other side may go up a little." However, he had no trouble walking on the roof surface, on the plywood, for about 20 feet. After getting to the roof, plaintiff sat on one of the "I" beams and lifted himself up with the intention of attaching a fitting to a pipe on the air conditioning unit.
As plaintiff attempted to stand up, his foot slipped on a hose that was lying on top of the "I" beam and he lost his balance and fell. The hose upon which plaintiff stepped, which was a half inch in diameter and black in color, was attached to the air conditioning unit and ran approximately twenty feet along the top of the "I" beam until it entered the building. Plaintiff believes it was a pressure testing hose which was used by the steam fitters. Plaintiff testified that he did not see the hose until after he fell.
William Fulton testified on behalf of Henegan. According to Fulton, Henegan was the general contractor in the re-fit of a floor of the building for tenant Freddie Mac. Fulton was the project manager assigned to the project and was on site every day. The project included the installation of HVAC equipment on a fourth floor exterior roof area. Fulton believed the HVAC units were installed by Henick-Lane. Fulton testified that he believes that Henick-Lane would typically hire a third-party subcontractor that specializes in pipe cleaning to chemically clean the HVAC unit pipes and that Henick-Lane could do so without authorization from Henegan. In his role as project manager, Fulton would "walk" the project, including the roof area where the accident occurred, looking for safety issues. He never observed any unsafe conditions in that area prior to the time of plaintiff's accident.
Joseph Hodgkinson testified on behalf of Henick-Lane. Hodgkinson was the project manager for Henick-Lane. Henegan hired Henick-Lane to perform the installation of a complete HVAC system as part of a larger renovation project. After Henick-Lane entered into a contract with Henegan, Henick-Lane entered into subcontracts with Chemical and Adria. Hodgkinson testified that he answered to Henegan and Henick-Lane's subcontractors answered to him.
According to Hodgkinson, the extent of Henegan's involvement with Henick-Lane's subcontractors was to show them where the air conditioning unit was. Henegan was not responsible for coordinating the work between Adria and Chemical. Likewise, Henegan never directed the employees of Henick-Lane's subcontractors in how to do their work. The subcontract with Adria called for Adria to pressure test the components of the HVAC system, and the subcontract with Chemical called for Chemical to flush chemically the newly-installed HVAC system. Hodgkinson testified, finally, that it was entirely possible that the work of Chemical and Adria might have overlapped such that employees of each would be onsite working at the same time.
John Morales testified on behalf of Chemical. Morales is employed by Chemical as a mechanic and plaintiff was his helper. The date of the accident was the first day working at the subject premises. They were at the premises to chemically clean out the HVAC system and to add antifreeze to the same. The HVAC unit they were working on was located on a setback roof area. Upon arriving at the roof area, Morales observed a "steam fitter" doing pressure testing on the HVAC unit with a tank and a hose. The tank was located inside the building and the hose ran out through a window to the outside roof area where it was connected to the HVAC unit piping.
The steam fitter told Morales that the HVAC unit was not ready for them yet so Morales, and plaintiff left to get coffee. When they returned approximately a half hour later, the hose was still clearly observable and was positioned such that it was coming out from the window and connected to the HVAC unit piping. The hose was hanging a few inches above one of the "I" beams on the roof. When plaintiff's accident occurred, Morales was working but plaintiff had not yet started working. Morales testified that in order to access the work area, you had to walk over an "I" beam because there was no walkway. The work that the plaintiff was going to do, however, did not require plaintiff to stand on the "I" beam, since the area of the HVAC unit that plaintiff was to attach fittings could be reached by standing on the surface of the roof itself. Morales did not see the accident.
Slavko Gavrilovic testified on behalf of Adria. On the day of the accident, Gavrilovic was employed as a foreman by Adria, which was in the business of performing heating, cooling, and air conditioning work. One of his duties included pressure testing of pipes of HVAC installations to check for leaks. Adria had been retained by Henick-Lane to do pressure testing of pipes at the building.
At the site on the day of the accident, Gavrilovic acted as the foreman for Adria and organized and ran their work. No one from Henegan directed Adria's work in any manner that day. As part of the work, he brought a nitrogen tank, an air compressor and air test hoses up to the fourth floor to pressure test the HVAC system. He could not remember how the hoses were connected to the HVAC unit that day nor could he recall if he observed any of the Adria-owned hoses on the outside roof area of the fourth floor that day.
The contract between Henegan and Henick-Lane contains an indemnification clause at paragraph "6.1," providing:
To the fullest extent permitted by law, subcontractor shall indemnify and hold harmless owner, construction manager, . . . the building landlord, . . . from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees arising out of or resulting from the performance of the subcontractor's work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property. . . regardless of whether or not it is caused in part by a party indemnified hereunder. The Motions
The Court, in this decision and order, is deciding the following motions:
(1) the motion by 122 East and Stahl for summary judgment dismissing the complaint and all cross claims against it, and for summary judgment in favor of 122 East against Henick-Lane Inc. for contractual defense and indemnification and common-law indemnification;Motion by 122 East
(2) the motion by Henegan Construction Company, Inc., to dismiss plaintiff's causes of action predicated upon common law negligence, Labor Law section 200 and Labor Law section 241(6), and for summary judgment on Henegan's cross claim for contractual indemnity asserted against
Henick-Lane;
(3) the cross motion by plaintiffs for summary judgment on their claims pursuant to Labor Law sections 240(1) and 241(6);
(4) the cross motion by Adria Industrial Piping, Ltd. ("Adria"), to dismiss plaintiff's labor law causes of action and to dismiss all cross claims and counterclaims as against Adria; and
(5) thecross motion by Henick-Lane for summary judgment in its favor dismissing plaintiffs' Labor Law sections 200 and 241(6) claims and for summary judgment in its favor on its third-party action against Adria and Chemical and, pursuant to CPLR 3212, to dismiss all cross claims interposed by 122 East and Stahl.
The branch of the motion seeking contractual indemnification from Henick-Lane, pursuant to the contract between Henick-Lane and Henegan, is granted. The record reveals that Henegan entered into a contract with Freddie Mac to perform work on the fourth floor of the building. The contract between Henegan and Freddie Mac requires Henegan to indemnify the owner and the landlord of the premises. Although Freddie Mac is listed as the "owner" under the contract, 122 East is clearly the "landlord."
The definition that Henick-Lane proposes rests on an impermissibly "strain[ed reading] to find an ambiguity which otherwise might not be thought to exist" (Uribe v Merchants Bank of NY, 91 NY2d 336 [1998], citing Loblaw Inc. v Employers' Liab. Assur. Corp., 57 NY2d 872, 877 [1982]). It is well established that "when the meaning of [a] . . . contract is plain and clear . . . [it is] entitled to [be] enforced according to its terms . . . [and] not to be subverted by straining to find an ambiguity which otherwise might not be thought to exist" (Uribe, 91 NY2d at 341).
The branch of the motion which seeks common-law indemnification from Henick-Lane, is denied. In the case of common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability, but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law (see, McDermott v City of New York, 50 NY2d 211 [1980]). Here, 122 East had not established that Henick-Lane was negligent.
The branch of the motion seeking summary judgment on its claim against Henick-Lane for failure to procure insurance, is granted. "Agreements to purchase and maintain insurance, ... are valid and enforceable" (Darowski v High Meadow Coop. No. 1, 239 AD2d 541, 542 [2nd Dept. 1997], citing Kinney v G.W. Lisk Co., Inc., 76 NY2d 215 [1990]; Schumacher v Lutheran Community Servs., 177 AD2d 568, 569 [2nd Dept. 1991]). A contractor may properly obtain insurance to insure an owner against its own acts of negligence, in contrast to an indemnification provision, which insures an owner against the imposition of vicarious liability based on another party's negligence (see, Kinney v G.W. Lisk Co., Inc., 76 NY2d at 215; McGill v Polytechnic Univ., 235 AD2d 400 [2nd Dept. 1997]).
122 East established its prima facie showing of entitlement to summary judgment by demonstrating that Henick-Lane failed to satisfy a contractual obligation to obtain insurance in the 122 East's name as an additional insured (see, Tkacs v Dominion Constr. Corp., 278 AD2d 486 [2nd Dept. 2000]; McGill v Polytechnic Univ., 235 AD2d 400, supra; Keelan v Sivan, 234 AD2d 516 [2nd Dept. 1996]; Roblee v Corning Community Coll., 134 AD2d 803 [3rd Dept. 1987], appeal denied, 72 NY2d 803 [1988]). Motion by Henegan
The branch of the motion seeking to dismiss the injured plaintiff's claims against Henegan, pursuant to Labor Law section 200, is denied. Labor Law section 200 is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work (see, Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Lombardi v Stout, 80 NY2d 290, 294 [1992]).
In Ortega v Puccia (57 AD3d 54, 61-62 [2008]) and Chowdhury v Rodriguez (57 AD3d 121, 128 [2008]), the Appellate Division, Second Department distinguished two broad categories under which liability may be imposed under Labor Law section 200. Where an accident is related to a dangerous or defective premises condition, a property owner can be held liable for either creating the condition or having actual or constructive notice and not remedying the condition within a reasonable time (see, Ortega v Puccia, 57 AD3d at 61; Chowdhury v Rodriguez, 57 AD3d at 128).
In contrast, where an accident arises from the manner in which work is performed, no liability attaches to the property owner absent evidence that the owner had the authority to supervise or control the performance of the work (see, Ortega v Puccia, 57 AD3d at 61; Chowdhury v Rodriguez, 57 AD3d at 128). Here, the condition involved in the injured plaintiff's accident was a hose left in place by the steam fitters who had been working at the site earlier in the day and, allegedly some of whom may have still been present when the injured plaintiff commenced his work. Thus, this case poses the question of whether the existing hose laying on the "I" beam of the roof constitutes a "premises condition," triggering one liability standard, or whether it instead implicates the "means and methods" of the contractor's work, triggering a different liability standard.
The steam fitters from Adria were hired by Henick-Lane as independent contractors. The steam fitters' work required pressure testing of pipes of HVAC installations to check for leaks. At the site on the day of the accident, Gavrilovic acted as the foreman for Adria and organized and ran their work. No one from Henegan directed Adria's work in any manner that day. According to Hodgkinson, the extent of Henegan's involvement with Henick-Lane's subcontractors was to show them where the air conditioning unit was. Henegan was not responsible for coordinating the work between Adria and Chemical. Likewise, Henegan never directed the employees of Henick-Lane's subcontractors in how to do their work.
Under the circumstances of this case, however, liability for the hose left on the "I" beam on the roof should be measured by the legal standard applicable to premises conditions.
The mislaid hose was not, at the time of the accident, being used by the steam fitters. Instead, by leaving the hose exposed on the "I" beam, the steam fitters created a tripping hazard. Morales testified that in order to access the work area, you had to walk over an "I" beam because there was no walkway. The plaintiff's accident occurred at a time of day when the steam fitters had already ceased their work and were no longer using their tools, including the hose at issue. The hose, therefore, was not part of the steam fitters' work at the time of the accident, but was a mere consequence of it after their work had been completed. The end of the steam fitters' work day transformed the mislaid hose into a premises condition. Therefore, although Henegan did not create the condition, Henegan was required to demonstrate, in order to prevail on its motion for summary judgment, that it did not have actual or constructive notice of the presence of the hose on the "I" beam on the roof where plaintiff had commenced working.
In its motion for summary judgment, Henegan addressed the injured plaintiff's Labor Law section 200 cause of action under both the "means and methods" standard and the "actual or constructive notice" standard. For the reasons stated, only the latter standard is relevant to the instant motion. In addressing that standard, Henegan, as the moving party, bears the initial burden of establishing prima facie entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Barillaro v Beechwood RB Shorehaven, LLC, 69 AD3d 543, 544-545 [2nd Dept. 2010]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 764-765 [2nd Dept. 2009]; Smith v Cari, LLC, 50 AD3d 879, 880 [2nd Dept. 2008]; Mikhaylo v Chechelnitskiy, 45 AD3d 821, 822 [2nd Dept. 2007]).
"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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Henegan failed to meet its prima facie burden of proving the absence of constructive notice of the steam fitters' hose on the "I" beam on the roof. In his role as project manager, Fulton testified that he would "walk" the project, including the roof area where the accident occurred, looking for safety issues, and that he never observed any unsafe conditions in that area prior to the time of plaintiff's accident.
The record, however, was devoid of any evidence regarding how much time may have elapsed from when the steam fitters completed their work for the day until the injured plaintiff's accident occurred. Without any evidence as to how long the steam fitters' hose was present on the "I" beam, Henegan is unable to demonstrate prima facie that it lacked constructive notice, and thus cannot eliminate a material question of fact in that regard (see, Stroppel v Wal-Mart Stores, Inc., 53 AD3d 651, 652 [2nd Dept. 2008]; Finger v Cortese, 28 AD3d 1089, 1091 [4th Dept. 2006]; Thompson v Pizza Hut of America, Inc., 262 AD2d 302 [2nd Dept. 1999]).
Henegan, furthermore, failed to provide any evidence regarding when this area of the roof had last been viewed and inspected prior to the time of the injured plaintiff's fall (see, Levine v Amverserve Ass'n, Inc., ___ AD3d ____, 2012 WL 503599, 2012 NY Slip Op 01216 [2nd Dept. 2012]; Jackson v Jamaica First Parking, LLC, 91 AD3d 602 [2nd Dept. 2012]; Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034, 1035-1036 [2nd Dept. 2010]; Pryzywalny v New York City Tr. Auth., 69 AD3d 598, 599 [2nd Dept. 2010]; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599 [2nd Dept. 2008]).
As a result of Henegan's failure to meet its prima facie burden of proof as to the Labor Law section 200 cause of action, it also failed to meet its prima facie burden on the common-law negligence cause of action (see, Lombardi v Stout, 80 NY2d at 295; Meng Sing Chang v Homewell Owner's Corp., 38 AD3d 625, 627 [2nd Dept. 2007]; Blanco v Oliveri, 304 AD2d 599, 600 [2nd Dept. 2003]). The Court, therefore, need not address the sufficiency of the opposition papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d at 764-765; Van Salisbury v Elliott-Lewis, 55 AD3d 725, 726 [2nd Dept. 2008]; Mikhaylo v Chechelnitskiy, 45 AD3d at 822).
The branch of the motion seeking to dismiss the injured plaintiff's claims against Henegan, pursuant to Labor Law section 241(6), is denied. Labor Law section 241(6) requires 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.
The duty to comply with the Commissioner's safety rules, set forth in the Industrial Code (12 NYCRR), is nondelegable. In order to support a claim under section 241(6), however, the particular provision relied upon by a plaintiff 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] [citation and internal quotation marks omitted]; see generally, St. Louis v Town of North Elba, 16 NY3d 411 [2011] [Court of Appeals, in a 4-3 split, upheld claim under Labor Law section 241(6)]; Johnson v Queens Crossing Condominium, 2012 WL 603960, 2012 NY Slip Op 50317(U) [Sup Ct Queens County 2012] [decision by the undersigned]).
To support his Labor Law section 241(6) cause of action, the plaintiffs' verified bill of particulars alleges violation of the following Industrial Code provisions: 12 NYCRR sections 23—1.5; 23-1.7; 23-1.8; 23-1.16; 23-1.21; 23-1.22; 23-1.24; 23-1.32; 23-2.1; 23-2.3; and 23-2.62.
Henegan correctly contends that although the injured plaintiff included 12 NYCRR 23- 1.5 among the predicates for the Labor Law section 241(6) cause of action, that provision merely sets forth a general standard of care and, thus, cannot serve as a predicate for liability pursuant to Labor Law section 241(6) (see, Wilson v Niagara Univ., 43 AD3d 1292, 1293 [4th Dept. 2007]; Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207, 208 [1st Dept. 2002]; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311, 312 [2nd Dept. 1997]). Similarly, 12 NYCRR 23-2.1 lacks the specificity required to support a cause of action under Labor Law section 241(6) (see, Parrales v Wonder Works Cont. Corp., 55 AD3d 579 [2nd Dept. 2008]; Madir v 21-23 Maiden Lane Realty LLC, 9 AD3d 450 [2nd Dept. 2004]).
Moreover, in opposition to the defendant's additional prima facie showing that sections 23-1.8, 23-1.22, 23-1.24, and 23-1.32 are inapplicable to this matter, the injured plaintiff failed to raise a triable issue of fact.
12 NYCRR 23-1.16 pertains to the use of safety belts, harnesses, tail lines and lifelines. As such devices were not being utilized at the time of the accident, the requirements set forth in this Code have no relevance to the happening of the subject accident (see, D'Acunti v NYC School Const. Auth., 300 AD2d 107 [1st Dept. 2002]; Avendano v Sazerac, Inc., 248 AD2d 340 [2nd Dept. 1998]).
12 NYCRR 23-2.1 pertains to the use of ladders and ladderways. As no ladder was in use in relation to the subject accident, the requirements set forth in this Code provision have no bearing in relation to the subject accident (see, Rau v Bagels N Brunch, Inc., 57 AD3d 866 [2nd Dept. 2008]; Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616 [2nd Dept. 2008]; Norton v Park Plaza Owners Corp., 263 AD2d 531 [2nd Dept. 1999]).
12 NYCRR 23-2.3 entitled "structural steel assembly" relates to the construction process of actually erecting structural steel members in place. In the instant action, it is undisputed that the steel "I" beam which plaintiff was allegedly standing on when he fell, was already in place and in fact was supporting the HVAC unit that plaintiff was there to work on. Moreover there is no allegation that the "I" beam shifted or otherwise moved thereby causing or contributing to the accident. Henegan, accordingly, is entitled to summary judgment dismissing the Labor Law section 241(6) cause of action to the extent that it is based on these provisions of the Industrial Code.
Plaintiffs' citation to Industrial Code (12 NYCRR) section 23-2.62 is erroneous. That section was repealed forty years ago, on June 1, 1972.
The branch of the motion seeking summary judgment dismissing the injured plaintiff's claims pursuant to Section 23-1.7, is denied. Section 23-1.7(d) states:
Slipping Hazards. Employers 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. Ice, snow, water, grease, or any other foreign substance which may cause slippery footing shall be removed, sanded, or covered to provide safe footing.
Section 23-1.7(d) contains concrete specifications that invoke the non-delegable duties of Labor Law section 241(6) (Rizzuto v L.A. Weneger Contr. Co. Inc., 91 NY2d 343 [1998]).
Section 23-1.7(e) is also a concrete provision that invokes Labor Law section 241(6) protections (Herman v St. John's Episcopal Hospital, 242 AD2d 316 [2nd Dept. 1997]). This section pertains to tripping and other hazards. It provides, in relevant part, as follows:
(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 ...
(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 performed.
Based upon the facts at hand, there is an issue of fact as to whether the hose on the "I" beam posed a tripping and or a slipping hazard.
The branch of the motion by Henegan seeking contractual indemnification from Henick-Lane, is granted. 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 Co., 70 NY2d 774, 777 [1987], citing Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]; see also, Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 159 [1977]; Rodriguez v Baker, 91 AD2d 143, 146 [1st Dept. 1983], aff'd on the opinion below, 61 NY2d 804 [1984]).
In the case at bar, a written contract for the subject work, undisputedly, was entered into between Henegan and Henick-Lane. The contract contains an indemnification clause at paragraph 6.1, providing that, to the fullest extent permitted by law, the subcontractor (Henick-Lane) will indemnify and hold harmless the construction manager (Henegan) from and against all claims "arising out of or resulting from the performance of "Henick-Lane's work." The terms of the foregoing indemnification clause are clear and unambiguous. The terms "arising out of" and "resulting from the performance of the work" are broadly construed indemnity triggers (see, Giangarra v Pav-Lak Contracting, Inc., 55 AD3d 869 [2nd Dept. 2008]; Lesisz v Salvation Army, 40 AD3d 1050 [2nd Dept. 2007]).
In the present action, the incident necessarily either "arose out of" or "resulted from the performance of" the work contracted by Henick-Lane since the injured plaintiff was unquestionably performing work which was contracted to Henick-Lane and which was then subcontracted by Henick-Lane to plaintiff's employer, Chemical. As such, the indemnity provision is triggered. Although an indemnification agreement that purports to indemnify a party for its own negligence is void under General Obligations Law section 5-322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification "to the fullest extent permitted by law," as the subject agreement does here (Cabrera v Board of Educ. of City of NY, 33 AD3d 641, 643 [2nd Dept. 2006]; see, Bink v F.C. Queens Place Assoc., LLC, 27 AD3d 408 [2nd Dept. 2006]).
An indemnification clause that purports to indemnify a party for its own negligence may be enforced, furthermore, where the party to be indemnified is found to be free of any negligence (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179 [1990]; Cabrera v Board of Educ. of City of NY, 33 AD3d 641, supra; Alesius v Good Samaritan Hosp. Med. & Dialysis Ctr., 23 AD3d 508 [2nd Dept. 2005]) and its liability is merely imputed or vicarious (see, Potter v M.A. Bongiovanni, Inc., 271 AD2d 918 [3rd Dept. 2000]). Cross Motion by Plaintiffs
Plaintiffs' cross motion for summary judgment on their claims pursuant to Labor Law sections 240 (1) and 241 (6), as against 122 East and Henegan, is granted. Labor Law section 240 (1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks (see, Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]; Barr v 157 5 Ave., LLC, 60 AD3d 796, 797 [2nd Dept. 2009]).
To recover under Labor Law section 240 (1), a plaintiff must demonstrate a violation of the statute and that such violation proximately caused his or her injuries (see, Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 [2003]). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240 (1)" (Treu v Cappelletti, 71 AD3d 994, 997 [2nd Dept. 2010]; see, Robinson v East Med. Ctr., LP, 6 NY3d at 554; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39; Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d at 290).
Here, plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on their Labor Law section 240(1) cause of action by demonstrating that the injured plaintiff was not provided with safety devices to properly protect him from the elevation-related risk, and that this failure proximately caused his accident (see, Ortiz v 164 Atl. Ave., LLC, 77 AD3d 807 [2nd Dept. 2010]; Tama v Gargiulo Bros., Inc., 61 AD3d 958, 960 [2nd Dept. 2009]; Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2nd Dept. 2006]).
In opposition, defendants failed to raise a triable issue of fact as to whether the injured plaintiff's conduct was the sole proximate cause of his own injuries (see, Gallagher v New York Post, 14 NY3d 83, 88-89 [2010]; Lipari v At Spring, LLC, ____ AD3d ____, 2012 WL 444071, 2012 NY Slip Op 01108 [1st Dept. 2012]; Zong Mou Zou v Hai Ming Constr. Corp., 74 AD3d 800, 801 [2nd Dept. 2010]; Treu v Cappelletti, 71 AD3d at 997; Valensisi v Greens at Half Hollow, LLC, 33 AD3d at 695-696; cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39-40). Defendants improperly raised a contributory negligence argument.
Specifically, defendants argue that plaintiff did not have to stand on the "I" beam in order to perform his work. The uncontroverted record reveals, however, that the injured plaintiff did have to traverse the "I" beam in order to get to his work area. In any event, under Labor Law section 240 (1), liability is absolute; contributory negligence is irrelevant (see Public Adm'r of Bronx County v Trump Vil. Constr. Corp., 177 AD2d 258, 259 [1991]). Thus, an injured's contributory negligence is not a defense to a claim based on Labor Law section 240(1) and the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devices (e.g., Bland v Manocherian, 66 NY2d 452 [1985]).
The "recalcitrant worker" defense, moreover, cannot be invoked in these circumstances (see, Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361 [4th Dept. 1982], appeal dismissed, 58 NY2d 824 [1983]). That defense, widely recognized by the courts in this State (e.g., Koumianos v State of New York, 141 AD2d 189 [3rd Dept. 1988]; Morehouse v Daniels, 140 AD2d 974 [4th Dept. 1988]; Cannata v One Estate, Inc., 127 AD2d 811 [2nd Dept. 1987]; Lickers v State of New York, 118 AD2d 331 [4th Dept. 1986]; Heath v Soloff Constr., 107 AD2d 507 [4th Dept. 1985]), requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer (see, Hagins v State of New York, 81 NY2d 921 [1993]]). It has no application where, as here, no adequate safety devices were provided (Stolt v General Foods Corp., 81 NY2d 918 [1993]; see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 525-526 [1985] [Simons, J., concurring]). An instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a "safety device" (Stolt v General Foods Corp., 81 NY2d 918, supra).
Accordingly, the branch of the motion by plaintiffs which is for summary judgment in their favor on their claim pursuant to Labor Law section 240(1), as against 122 East and Henegan, is granted.
The branch of the motion by plaintiffs for summary judgment on their claim under Labor Law section 241 (6), based upon 12 NYCRR, Section 23-1.7, is granted. Labor Law section 241(6) provides, in pertinent part, that all areas where construction is being performed should provide reasonable and adequate protection and safety to persons employed in or frequenting such areas. To prevail on a cause of action under section 241(6), however, a plaintiff must establish a violation of a specific safety regulation promulgated by the Commissioner of the Department of Labor (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Kulis v Xerox Corp., 231 AD2d 922 [4th Dept. 1996]).
The regulation which plaintiff claims was violated in this matter is, inter alia, 12 NYCRR 23-1.7 (e), which relates to tripping hazards. This section provides:
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."
Here, the evidence on the motion clearly indicates that the "I" beam was a platform used by the injured plaintiff to reach his work area (see, Whalen v City of New York, 270 AD2d 340 [2nd Dept. 2000]; see also, Zeigler-Bonds v Structure Tone, 245 AD2d 80 [1st Dept. 1997]; Cafarella v Harrison Radiator Div. of Gen. Motors, 237 AD2d 936 [4th Dept. 1997]). The hose was not installed, applied, or intentionally left on the "I" beam (see, Alvia v Teman Elec. Contr., 287 AD2d 421 [2nd Dept. 2001]; Moses v Pinazo, 265 AD2d 391 [2nd Dept. 1999]; Lenard v 1251 Ams. Assoc., 241 AD2d 391 [1st Dept. 1997]). Further, its presence on the "I" beam was inconsistent with the work the injured plaintiff was performing (see, Cafarella v Harrison Radiator Div. of Gen. Motors, 237 AD2d 936, supra; 12 NYCRR 23-1.7[e][2]).
The plaintiff, moreover, made a prima facie showing that the hose on which he slipped was a "foreign substance" which posed a slipping hazard for purposes of 12 NYCRR 23—1.7(d) (cf. Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2nd Dept. 2003]; D'Acunti v New York City School Constr. Auth., 300 AD2d 107 [1st Dept. 2002]). In addition, even assuming arguendo that the hose was a part of the work being performed, liability based on a violation of 12 NYCRR 23—1.7(d) is not precluded merely because the foreign substance which caused an accident may have been part of the work being performed (see, Hageman v Home Depot USA, Inc., 45 AD3d 730 [2nd Dept. 2007]; see also, McCraw v United Parcel Serv., 263 AD2d 499 [2nd Dept. 1999]; Stasierowski v Conbow Corp., 258 AD2d 914 [4th Dept. 1999]; Hammond v International Paper Co., 161 AD2d 914 [3rd Dept. 1990]). Cross Motion by Adria
The branch of the motion by Adria which is to dismiss plaintiffs' claim under Labor Law section 200, is denied. There is sufficient evidence from which a jury could conclude that Adria had either created the unsafe condition, by leaving the hose laying across the "I" beam, or had actual or constructive notice of the defect (see, Lally v JGN Constr. Corp., 295 AD2d 148 [1st Dept. 2002], lv. to appeal denied, 99 NY2d 504 [2002]). This evidence is legally sufficient to support the finding that Adria violated Labor Law section 200. It is not necessary to prove Adria's supervision and control over plaintiff because the injury arose from the condition of the work place created by or known to Adria, rather than the method of plaintiff's work (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Roppolo v Mitsubishi Motor Sales of Am., 278 AD2d 149, 150 [1st Dept. 2000]).
The branch of the motion by Adria which is to dismiss plaintiffs' claim under Labor Law section 240(1), insofar as asserted against Adria is granted as unopposed, and otherwise on the merits (see, Reilly v Loreco Construction, 284 AD2d 384 [2nd Dept. 2001]).
The branch of the motion by Adria which is to dismiss plaintiffs' claim under Labor Law section 241(6), is denied for reasons noted above in addressing plaintiffs' cross motion for summary judgment.
Finally, the branch of the motion by Adria which is for summary judgment in its favor dismissing all cross claims and counterclaims against it is denied as provided above. If it is ultimately determined that Adria was negligent in placing or leaving the subject hose on the "I" beam, Henegan will be entitled to contractual indemnity from Adria (see, Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774 [1987]; Lazzaro v MGM Indus., 288 AD2d 440 [2nd Dept. 2001]).
"While owners and general contractors owe nondelegable duties under the Labor Law to plaintiffs who are employed at their work sites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident" (Kennelty v Darlind Constr., 260 AD2d 443, 445—446 [2nd Dept. 1999]; see, Brown v Two Exch. Plaza Partners, 76 NY2d 172 [1990]). Here, the language of the contract between Henick-Lane and Adria clearly reflects their intention that Henegan be entitled to full contractual indemnification from Adria (see, Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, supra]).
Although General Obligations Law section 5—322.1 voids any indemnification clause to the extent that a party seeks indemnity for its own acts of negligence (see, Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 [1997]; Brown v Two Exch. Plaza Partners, 76 NY2d 172, supra), the Court finds that Henegan is liable to the plaintiff under Labor Law § 240(1) based solely upon its status as the general contractor. Since there is no evidence that Henegan was negligent or that it directed, controlled, or supervised the manner in which the injured plaintiff performed his work, it is entitled to summary judgment on its cause of action against Adria, its subcontractor, based on the contractual agreement requiring Adria to hold Henegan harmless and indemnify it (see, Kennelty v Darlind Constr., 260 AD2d 443 [2nd Dept. 1999]; Isnardi v Genovese Drug Stores, 242 AD2d 672 [2nd Dept. 1997]; Dawson v Pavarini Constr. Co., Inc., 228 AD2d 466 [2nd Dept. 1996]). Cross Motion by Henick-Lane
The branch of the cross motion by Henick-Lane seeking dismissal of the plaintiffs' Labor Law section 200 claim is denied. Henick-Lane contends that it exercised no supervision or control over the injured plaintiff's work. Plaintiffs allege, however, that the accident occurred as a result of a dangerous condition on the premises, and thus whether defendant supervised or controlled the injured plaintiff's work is irrelevant (see, Reisch v Amadori Constr. Co., 273 AD2d 855 [4th Dept. 2000]).
Henick-Lane failed to establish as a matter of law that it did not exercise any supervisory control over the general condition of the premises or that it neither created nor had actual or constructive notice of the dangerous condition on the premises (see, Skinner v Oneida-Herkimer Solid Waste Mgt. Auth., 275 AD2d 890, 891 [4th Dept. 2000]; see also, Sponholz v Benderson Prop. Dev., 273 AD2d 791, 792-793 [4th Dept. 2000]).
The branch of the cross motion by Henick-Lane seeking dismissal of plaintiffs' Labor Law section 241(6) claim is denied for reasons stated by the Court in the section pertaining to Henegan's similar request.
The branch of the cross motion by Henick-Lane seeking contractual indemnification from Adria is granted. "While owners and general contractors owe nondelegable duties under the Labor Law to plaintiffs who are employed at their work sites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident" (Kennelty v Darlind Constr., 260 AD2d 443, 445-446 [2nd Dept. 1999]; see, Brown v Two Exch. Plaza Partners, 76 NY2d 172 [1990). Here, the language of the contract between Henick-Lane and Adria clearly reflects their intention that Henick-Lane be entitled to full contractual indemnification from Adria (see, Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, supra).
The branch of the motion by Henick-Lane seeking a conditional award of contractual indemnity from Chemical is granted. Henick-Lane is entitled to a conditional judgment on the issue of indemnity against Chemical pending the determination of the plaintiffs' action (see, Kemp v Lakelands Precast, 55 NY2d 1032 [1982]; Gange v Tilles Inv Co, 220 AD2d 556 [2nd Dept. 1995]; Richardson v Matarese, 206 AD2d 354 [2nd Dept. 1994]). Henick-Lane is entitled to indemnification as it made a prima facie showing that it neither directed nor controlled the plaintiff's work (see, Mackey v Beacon City School Dist., 216 AD2d 534 [2nd Dept. 1995]; Richardson v Matarese, 206 AD2d 354, supra; Edlin v Glinsky, 154 AD2d 648 [1989]).
Pursuant to the contract between Henick-Lane and Chemical, the latter is required to indemnify Henick-Lane against claims and expenses including reasonable attorneys' fees, arising out of any act or omission of Chemical's employees. The indemnification provision is enforceable inasmuch as it does not require that the triggering act or omission constitute negligence (see, e.g., Matter of New York City Asbestos Litig., 41 AD3d 299, 302 [1st Dept. 2007]).
The branch of the cross motion by Henick-Lane seeking the dismissal of the cross claims of 122 East and Stahl is denied. 122 East seeks contractual indemnification from Henick-Lane pursuant to the contract between Henegan and Henick-Lane. 122 East seeks indemnification based upon its status as the "landlord". The term "landlord", however, is not defined in the contract. While under the contract Freddie Mac is listed as the owner, 122 East is undisputably the "landlord" of the property. The plain language of the contract provides for indemnification of the owner and the "landlord". Once again, "when the meaning of [a] . . . contract is plain and clear . . . [it is] entitled to [be] enforced according to its terms ... [and] not to be subverted by straining to find an ambiguity which otherwise might not be thought to exist" (Uribe v Mechchants Bank of NY, 91 NY2d 336 [1998], citing Loblaw, Inc. v Employers' Liab. Assur. Corp., 57 NY2d 872, 877 [1982]).
Finally, the branch of the cross motion which seeks to dismiss the claims and cross claims against Stahl, is granted as unopposed. Conclusion
The branch of the motion by 122 East seeking contractual indemnification from Henick-Lane is granted. The branch of the motion by 122 East seeking common-law indemnification from Henick-Lane is denied. The branch of the motion by 122 East requesting summary judgment on its claim against Henick-Lane for failure to procure insurance is granted.
The branches of the motion by Henegan seeking the dismissal of plaintiffs' claim pursuant to Labor Law sections 200 and 241(6), insofar as asserted against it, are denied. The branch of the motion by Henegan requesting contractual indemnification from Henick-Lane, is granted.
The branches of the cross motion by plaintiffs requesting summary judgment in their favor on their claims pursuant to Labor Law sections 240(1) and 241(6) are granted.
The branch of the cross motion by Adria seeking dismissal of plaintiffs' claim pursuant to Labor Law section 200 is denied. The branch of the cross motion by Adria seeking the to dismissal of plaintiffs' claim under Labor Law section 240(1) is granted as unopposed. The branch of the cross motion by Adria requesting the dismissal of the plaintiffs' claim under Labor Law section 241(6) is denied. The branch of the cross motion by Adria seeking the dismissal of all cross claims and counterclaims against it is denied.
The branches of the cross motion by Henick-Lane seeking the dismissal of the plaintiffs' Labor Law sections 200 and 241(6) claims are denied. The branch of the cross motion by Henick-Lane seeking contractual indemnification from Adria is granted. The branch of the motion by Henick-Lane seeking a conditional award of contractual indemnity from Chemical, is granted. The branch of the cross motion by Henick-Lane requesting the dismissal of the cross claims of 122 East and Stahl is denied. The branch of the cross motion seeking to dismiss the claims and cross claims against Stahl is granted.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________
Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
March 1, 2012