Opinion
163192005.
Decided July 10, 2008.
The following papers numbered 1 to 34 read on the cross motion by defendant Metal Sales Co., Inc. for summary judgment dismissing the third-party complaint of RC Dolner Inc., and Kolanu Partners LLC, pursuant to CPLR 3211 and 3212, and Workers' Compensation Law § 11. Defendants and third-party plaintiffs RC Dolner, LLC and Kolanu Partners LLC, cross-move for an order granting summary judgment dismissing plaintiffs' claims for violations of Labor Law §§ 200 and 241(6) based upon a violation of 12 NYCRR 23-1.30 and 23-2.1, and in the alternative for summary judgment against defendants HP Electrical Designs, or Olympic Plumbing Heating Corp,, or S C Products Corp. or Metal Sales Co. Inc.
Plaintiff Kevin J. Tarpey sustained personal injuries at approximately 7:05 A.M. on October 25, 2004, during his employment with Metal Sales Company, when he tripped and fell over a pipe at a construction site, located on the 9th floor of 119 East 23rd Street, New York, New York. Plaintiff alleges that the defendants created or permitted a dangerous condition to exist and that the lighting at the construction site was inadequate. The complaint and bill of particulars alleges claims for common-law negligence and for violations of Labor Law §§ 200 and 241(6), and violations of 12 NYCRR 23-1.7(e)(1), (2), 12 NYCRR 23-1.30, 12 NYCRR 23-2.1(a)(1), (2), (b) and 29 CFR Section 1926.
The construction site was owned by defendant Kolanu Partners LLC (Kolanu Partners), and defendant RC Dolner, Inc. (RC Dolner), was its general contractor. Defendant and third-party defendant S C Products Corp. (S C) entered into a subcontract dated June 16, 2004, with RC Dolner to install aluminum windows at the construction site. S C entered into a sub-subcontract whereby third-party defendant Metal Sales Co. (Metal Sales) would perform the labor, and S C would provide the materials. Metal Sales is plaintiff Kevin Tarpey's employer. Defendant Olympic Plumbing Heating Corp., pursuant to a subcontract with RC Dolner, installed waste lines at the premises. Defendant Safety Consultant, Inc., is alleged to have been the safety engineer for the construction project. Defendant and third-party defendant HP Electrical Designs, Inc. subcontracted with RC Dolner to provide lighting and electrical services at the construction site.
Plaintiffs' claims and all cross claims against defendant Safety Consultant Inc. were discontinued with prejudice, pursuant to a stipulation dated October 31, 2007, which was thereafter filed with the court.
The parties, pursuant to a compliance conference order dated February 20, 2007, were directed to file a note of issue and certificate of readiness by September 2, 2007. Said order also addressed certain outstanding discovery. The preliminary conference order of July 24, 2006, provided that all motions for summary judgment pursuant to CPLR 3212(b) shall be made no later than 120 days after the filing of the note of issue. The note of issue was filed in this action on September 21, 2007. Following a telephone conference on September 25, 2007 in Justice Ritholtz' part, counsel for S C and counsel for Kolanu Partners, LLC, and RC Dolner, executed a stipulation dated September 25, 2007 providing for various outstanding discovery and extending the time in which to move for summary judgment to February 29, 2008. However, a fully executed stipulation was not returned to the court, and it was never so-ordered by the court. Therefore, pursuant to the prior order of the court, the parties' time in which to serve the motion for summary judgment pursuant to CPLR 3212(b) remained 120 days from the date of filing the note of issue. The 120 time period thus ran from September 22, 2007 to January 19, 2008. However, as January 19, 2008 was a Saturday, and as January 21, 2008 was Dr. Martin Luther King Jr. Day, a holiday, the 120 day period expired on January 22, 2008 ( see General Construction Law §§ 24, 25-a; see also Simon v PABR Associates LLC, 18 Misc 3d 1117A ).
RC Dolner and Kolanu Partners previously moved for an order compelling compel third-party defendant Metal Sales Co., Inc. to produce David Rivera for a deposition, and third-party defendant Metal Sales Co., Inc. cross-moved for an order dismissing the RC Dolner and Kolanu Partner's third-party complaint pursuant to CPLR 3211 and Workers Compensation Law § 11. RC Dolner and Kolanu Partners orally withdrew their motion on March 12, 2008, and Mr. Rivera was deposed on March 28, 2008.
Metal Sales' cross motion to dismiss the third-party complaint was served on December 17, 2007 and therefore is timely. RC Dolner and Kolanu Partners' cross motion for an order granting summary judgment dismissing plaintiffs' claims for violations of Labor Law §§ 200 and 241(6) and Industrial Code Sections 23-1.30 and 23-2.1, and in the alternative for summary judgment against defendants HP Electrical, or Olympic Plumbing, or S C, or Metal Sales, was served on January 9, 2008 and filed with the court on January 16, 2008, and therefore is timely.
It is well settled that a party seeking summary judgment "must make a prima facie showing of entitlement as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Ayotte v Gervasio, 81 NY2d 1062, 1063; see Alvarez v Prospect Hosp., 68 NY2d 320, 324). A prima facie showing shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material question of fact ( see Alvarez v Prospect Hosp., supra).
Metal Sales' cross motion to dismiss the third party complaint
In the third-party complaint, RC Dolner, in its fifth cause of action alleges that it is an intended third-party beneficiary of the contract between S C and Metal Sales, and seeks indemnification and contribution, as well as attorney's fees, costs and expenses. RC Dolner in its sixth cause of action against Metal Sales seeks common-law indemnification; it seventh cause of action seeks common-law contribution; its eighth cause of action alleges that it is a third-party beneficiary of the S C and Metal Sales subcontract, and alleges that said contract requires Metal Sales to indemnify and hold harmless RC Dolner, and to procure insurance for its benefit. Kolanu asserts identical claims against Metal Sales in the sixteenth, seventeenth, eighteenth, nineteenth, and twentieth causes of action.
Metal Sales asserts, and third-party plaintiffs Kolanu Partners and RC Dolner agrees, that plaintiff Kevin Tarpey did not sustain a "grave injury" within the meaning of Workers' Compensation Law § 11. Workers' Compensation Law § 11 expressly states that "grave injury . . . shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability." Therefore, dismissal of those causes of action set forth in the third-party complaint which allege claims of contribution and common-law indemnification as against Metal Sales, is mandated ( O'Berg v MacManus Group, Inc. , 33 AD3d 599 ; Lipshultz v K G Industries, 294 AD2d 338; Schuler v Kings Plaza Shopping Center Marina, 294 AD2d 556, 559; Hussein v Pacific Handy Cutter, 272 AD2d 223, 223-224).
"In the absence of a grave injury,' Workers' Compensation Law § 11 . . . bars a third-party action for contribution or indemnification against an employer when its employee is injured in a work-related accident, unless the employer entered into a written contract prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered' ( Guijarro v V.R.H. Constr. Corp., 290 AD2d 485, 486, [2002] quoting Workers' Compensation Law § 11). The third-party claims for contractual indemnification and breach of a contract to procure insurance covering it, are based in part, upon the subcontract entered into by RC Dolner and S C for the installation of the windows, dated June 16, 2004. Said contract provides that S C is required to indemnify and provide insurance for RC Dolner and the owner, Kolanu Partners. It is undisputed, however, that no written contract was entered into between RC Dolner or Kolanu Partners and Metal Sales. Rather, S C, as a subcontractor, entered into a contract with Metal Sales, pursuant to a letter agreement from S C dated September 13, 2004, wherein S C agreed to pay Metal Sales the sum of $260,000.00 for labor, fasteners and equipment as required to receive, distribute and install aluminum windows, as required by the plans, specifications and EFCO shop drawings. The letter agreement requested that Metal Sales provide certificates of insurance listing S C as an additional insured, and further stated "[t]erms and conditions and sales as our contract with RC Dolner".
The subcontract between RC Dolner and S C provides, in pertinent part as follows:
"XVII. ASSIGNMENT AND SUBCONTRACTING
17.1 To the fullest extent permitted by law, neither this Agreement no any monies due or to become due hereunder shall be assignable or sublet without the prior written consent of RC Dolner LLC and Owner. RC Dolner LLC and Owner's consent to any assignment or subletting shall not relieve the Subcontractor of any of its duties, responsibilities or obligations under the Contract Documents, and the Subcontractor shall be and remain as fully responsible and liable for all defaults, negligence, acts and omissions of its assignees and subcontractors and all persons directly or indirectly employed by them as it is for its own defaults, neglects, acts and omissions.
17.2 The Subcontractor shall bind each of its subcontractors to all of the terms and provisions of the Contract Documents with respect to any Subcontracted Work. Consent to any subcontracting shall not be deemed to create any contractual relationship between RC Dolner LLC and any subcontractor to whom the Subcontractor's work or any portion thereof is contracted and shall not vest any right or right of action in such subcontractor against RC Dolner LLC or Owner."
Metal Sales, is a sub-subcontractor, and there is no evidence that pursuant to its September 13, 2004, agreement with S C, it undertook to satisfy the indemnity and insurance procurement obligations set forth in the June 16, 2004 prime contract between RC Dolner and S C. Moreover, there were no provisions in the contract between RC Dolner and S C expressly requiring sub-subcontractors to indemnify or purchase insurance for RC Dolner and Kolanu Partners ( see Bussanich v 310 East 55th St. Tenants, 282 AD2d 243, 244). Such requirements are only imposed upon the subcontractor, S C.
Therefore, to the extent Metal Sale's agreement with S C incorporated the above provisions of S C's contract with RC Dolner, under New York law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character, and manner of work to be performed by the subcontractor" ( Bussanich v 310 East 55th Street Tenants, supra at 244; see also Waitkus v Metropolitan Hous. Partners , 50 AD3d 260 ; Adams v Boston Properties Ltd. Partnership , 41 AD3d 112; Goncalves v 515 Park Ave. Condominium , 39 AD3d 262 , 263). While it is true that "[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., Inc., 70 NY2d 774, 777, quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153; Hogeland v Sibley, Lindsay Curr Co., 42 NY2d 153, 159; Rodriguez v Baker, 91 AD2d 143, 146, affd 61 NY2d 804, [1984]), there is no evidence to support the conclusion that the parties intended that Metal Sales be obligated to indemnify RC Dolner and Kolanu Partners ( see Flores v Lower East Side Service Center, Inc., 4 NY3d 363; Brown Bros. Elec. Contractors, Inc. v Beam Const. Corp., 41 NY2d 397). Furthermore, although Metal Sales agreed to procure insurance naming S C as an additional insured, there is no evidence that it agreed to procure such insurance naming RC Dolner and Kolanu Partners as additional insureds. An obligation to insure does not give rise to or infer an obligation to indemnify ( Kinney v G. W. Lisk Co., 76 NY2d 215, 218; Goncalves v 515 Park Ave. Condominium, supra, citing Hooper Assoc. v AGS Computers, 74 NY2d 487).
Kolanu and RC Dolner allege in the third-party complaint that they are third-party beneficiaries of an agreement between S C and Metal Sales. The third-party plaintiffs, as well as S C oppose Metal Sales' cross motion and seek to rely upon a "Hold Harmless/Indemnity Agreement" dated April 4, 2004 executed by "Chris Richardson, President," which provides as follows:
"Subcontractor hereby assumes sole responsibility and liability for any and all damage or injury of any kind or nature whatever (including death) to all persons, whether employees of the Subcontractor or otherwise, and to all property, where such damage or injury is caused by, results from, or arises out of, or occurs in connection with the execution of the Work.
Subcontractor shall indemnify and save harmless S C Products Corp., the Prime Contractor and/or the Owner and their officers, agents, servants and employees ("the Indemnified Parties") from and against any and all claims for such damage or injury (including death) and from and against any and all loss, cost expense, liability, damage or injury, including legal fees and disbursements that the Indemnified Parties, or any of them may sustain suffer or incur, directly or indirectly, as a result of the execution of the Work.
Subcontractor shall assume the defense of any action at law or in equity which may be brought against the Indemnifies (sic) Parties, or any one of them, upon or by reason of such claims, and to pay on behalf of the Indemnified Parties, upon demand, the amount of any judgment that may be entered against the Indemnified Parties, or any one of them, in any such action.
Project: Blanket agreement for all projects with S CProducts Corp."
Third-party plaintiff's reliance on the blanket Hold Harmless/Indemnity Agreement is misplaced. "When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" ( Hooper Assocs. v AGS Computers, 74 NY2d 487, 491). The blanket agreement, however, does not identify Metal Sales as the "subcontractor," and does not contain any provision expressly requiring Metal Sales to indemnify and harmless any party. Furthermore, the blanket agreement violates General Obligation Law § 5-322.1, as it requires the "subcontractor" to indemnify and hold harmless S C, the prime contractor and the owner, for "any and all claims" that arose "as a result of the execution of the work" without regard to who or what caused the injury, without any limitation. Therefore, third-party plaintiffs RC Dolner and Kolanu are barred from seeking contractual indemnification and contribution pursuant to the blanket Hold Harmless/Indemnity Agreement ( see Itri Brick Concrete Corp. v Aetna Cas. Sur. Co., 89 NY2d 786, 795; Kalinsky v Square , 41 AD3d 785 ; Brooks v Judlau Contr., Inc. , 39 AD3d 447; Flores v Jeffrey M. Brown Constr. Assoc. , 28 AD3d 711 , 712; Carriere v Whiting Turner Contr., 299 AD2d 509, 511).
In view of the foregoing, Metal Sales' cross motion for summary judgment dismissing the third-party claims by RC Dolner and Kolanu Partners for common-law indemnification and contribution, contractual indemnification and contribution and breach of a contract to procure insurance, is granted.
RC Dolner and Kolanu Partners' cross motion for summary judgment dismissing the complaint :
Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work ( see Comes v New York State Elec. Gas Corp., 82 NY2d 876, 877; Peay v New York City School Constr. Auth. , 35 AD3d 566 , 567 [2006]). "Where . . . a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition" ( Keating v Nanuet Bd. of Educ. , 40 AD3d 706 , 708).
Here, the evidence presented establishes that plaintiff Kevin Tarpey sustained physical injuries when he stepped on a piece of pipe that had been left at the work site by another, causing him to fall into a pile of stacked sheet rock. The evidence presented also establishes that the area where plaintiff was working was dark and inadequately illuminated. Plaintiff thus has sufficiently established that the debris left on the site by another subcontractor as well as the inadequate lighting, constitutes a dangerous or defective condition of the premises. Defendants RC Dolner and Kolanu Partner's claim that plaintiff was the "sole proximate cause" of the accident is rejected ( see Blake v Neighborhood Hous. Servs. of New York City, Inc. , 1 NY3d 280 ), as the cause of this accident was the dangerous or defective condition of the premises and not due solely to any the actions of the plaintiff.
As regards defendant Kolanu Partners, there is no evidence that the owner of the premises had control over the work site or that it had actual or constructive notice of the alleged defective condition. Therefore, that branch of this defendant's cross motion which seeks to dismiss plaintiffs' causes of action for common-law negligence and a violation of Labor Law § 200, is granted.
As regards RC Dolner, the evidence presented establishes that it employed laborers to clean debris left at the work site by certain subcontractors, which included work performed by the plumbing and electrical subcontractors, and therefore it had control over the work site. In addition, the evidence presented establishes that this defendant had notice that the temporary lighting was inadequate and that drop lights were needed within the units under construction. RC Dolner, thus has failed to establish, prima facie, that it lacked control over the condition of the work site ( see Lane v Fratello Constr. Co., ___ AD3d ___, 2008 NY Slip Op 5483; 2008 NY App. Div. LEXIS 5406 [June 10, 2008]; Keating v Nanuet Bd. of Educ., supra at 709; Kerins v Vassar Coll. , 15 AD3d 623 , 625), and further has failed to establish, prima facie, that it lacked actual or constructive notice of the alleged defect ( see Keating v Nanuet Bd. of Educ., 40 AD3d at 709; see also Mikhaylo v Chechelnitskiy , 45 AD3d 821, 847). Therefore, that branch of this defendant's cross motion which seeks to dismiss plaintiffs' causes of action for common-law negligence and a violation of Labor Law § 200, is denied.
The statutory duties imposed by Labor Law § 241(6) place ultimate responsibility for safety practices on owners of the work site and general contractors ( see Russin v Picciano Son, 54 NY2d 311, 317). To the extent that plaintiffs assert a violation of 29 CFR Section 1926, alleged violations of OSHA regulations cannot serve as a predicate to liability under Labor Law § 241(6)( Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 351).
Plaintiffs also allege that defendants violated the provisions of Industrial Code 12 NYCRR § 23-1.7(e)(1) and (2) which reads as follows:
"(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 provisions are specific enough to sustain an action under Labor Law § 241(6) for their violation ( Jicheng Liu v Sanford Tower Condominium, Inc. , 35 AD3d 378 ; Boss v Integral Construction Corp., 249 AD2d 214; Herman v St. John's Episcopal Hosp., 242 AD2d 316; McDonagh v Victoria's Secret, Inc. , 9 AD3d 395 ). Plaintiffs further allege a violation of 12 NYCRR 23-1.30 which provides that "illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work." This Industrial Code section is sufficient to support a Labor Law § 241(6) claim ( Murphy v Columbia University , 4 AD3d 200 ). As plaintiffs assert that RC Dolner and Kolanu Partners failed to provide keep the work area free from debris and failed to provide sufficient illumination, these sections of the Industrial Code may serve as a predicate to the Labor Law § 241(6) claim. Therefore, that portion of RC Dolner and Kolanu Partners' cross motion which seeks to dismiss plaintiffs' Labor Law § 241(6) claim is denied.
Plaintiffs further allege a violation of 12 NYCRR 23-2.1(a)(1), and (2), and 12 NYCRR 23-2.1(b), which provides as follows:
"Maintenance and housekeeping (a) Storage of material or equipment. (1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare. (2) Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge. (b) Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area."
Section 23-2.1(b) is not sufficiently specific to support a statutory violation ( see Gonzalez v Glenwood Mason Supply Co. , 41 AD3d 338 ; Quinlan v City of New York, 293 AD2d 262). However, section 23-2.1(a) contains concrete specifications required to sustain a Labor Law § 241(6) cause of action ( see Rosado v Briarwoods Farm , 19 AD3d 396 ). Since plaintiff was injured when he stepped on the pipe and fell onto a stack of sheet rock, and as defendants RC Dolner and Kolanu Partners have not established that the sheet rock was properly stored, their request to dismiss plaintiffs' Labor Law § 241(6) claim is denied.
Finally, as RC Dolner and Kolanu Partners have not established that they are not liable to the plaintiffs, that branch of the cross motion which seeks summary judgment on their claims against HP Electrical, S C and Olympia Plumbing is denied. RC Dolner and Kolanu Partners request for summary judgment on their claims against Metal Sales are denied and these claims are dismissed for the reasons stated above.
Conclusion
Third-party defendants Metal Sales' cross motion for summary judgment dismissing the third-party action against it by RC Dolner and Kolanu Partners is granted.
That branch of RC Dolner and Kolanu Partner's cross motion which seeks summary judgment dismissing plaintiffs' claims for common-law negligence and for a violation of Labor Law § 200 is granted solely as to Kolanu Partners and is denied as to RC Dolner. That branch of RC Dolner and Kolanu Partners' cross motion which seeks an order granting summary judgment dismissing plaintiffs' claims for a violation of Labor Law § 241(6), is denied. That branch of RC Dolner and Kolanu Partner's cross motion which seeks, in the alternative, summary against defendants HP Electrical Designs, or Olympic Plumbing Heating Corp, or S C Products Corp. or Metal Sales Co. Inc., is denied, and their third-party claims against Metal Sales are dismissed.