Opinion
Index No. 513407/2018 Seqs. No. 009-013
01-16-2024
Arthur Andreasyan, Plaintiff, v. Alexander Espinal, Jason T. Espinal, Kingsway Realty LLC, Lake Realty Inc., Integrity Contracting Inc., Silvercup Scaffolding 1, LLC, and A&M Construction Services Inc., Defendants. Integrity Contracting Inc., Third-Party Plaintiff, v. Vista Architectural Products and Lavada Inc., Third-Party Defendants. Kingsway Realty LLC, Second Third-Party Plaintiff, v. Vista Architectural Products and Lavada Inc., Second Third-Party Defendants.
Unpublished Opinion
DECISION/ORDER
DEVIN P. COHEN, JUDGE.
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion
Papers Numbered
Notice of Motion and Affidavits Annexed .... 1-5
Order to Show Cause and Affidavits Annexed.__
Answering Affidavits.................... 6-10
Replying Affidavits......................11-15
Exhibits.................................... __
Other.......................................__
Upon the foregoing papers, plaintiffs motion for summary judgment (Seq. 009), Kingsway Realty LLC (Kingsway)'s motion for summary judgment (Seq. 010), Integrity Contracting Inc. (Integrity)'s motion for summary judgment (Seq. 011), third-party defendant/second third-party defendant Vista Architectural Products (Vista)' motion for summary judgment (Seq. 012), and third-party defendant/second third-party defendant Lavada Inc. (Lavada)'s cross-motion for summary judgment (Seq. 013) are decided as follows:
Factual Background
Plaintiff commenced this action to recover for damages he claims he sustained on January 18,2018 while working at a construction site. The following facts are undisputed: The site was located at 1601-21 Kings Highway, Brooklyn, NY. Kingsway was the owner of the premises. Integrity was the general contractor. Integrity sub-contracted with Vista to perform exterior envelop work and Vista sub-contracted with Lavada to perform window fagade work. The property was a new construction and five stories had been erected at the time of the alleged accident.
It is also undisputed that plaintiff, an employee of Lavada, was working in a manlift level with the fifth floor of building on the date of his alleged accident. Plaintiff was wearing a harness and lanyard at the time (Andreasyan EBT at 69-70, 84, 89). While plaintiff was working on window framing, the base of the lift was struck by a sedan driven by defendant Jason Espinal. Mr. Espinal testified that he was attempting to pass a double-parked van, encountered oncoming traffic as he was exiting his lane, and in attempting to return to his own lane of travel collided with the manlift (Espinal EBT at 53-57). Mr. Espinal was traveling approximately twenty-five miles per hour at the time of the collision. The photographs plaintiff took immediately after the accident depict a white sedan, the hood of which struck the tire of the manlift. The lift ordinarily had one barricade in the front, one barricade on the back, and two barricades on the traffic-facing side of the lift adjacent to Kings Highway (Manuel Fernandez, Integrity's site safety superintendent, EBT at 89). The barriers along Kings Highway, the traffic facing side of the lift, are both missing in the photographs submitted to the court, as is the barrier behind the manlift. Mr. Fernandez testified that the barriers missing in the photograph were either under the car or pushed out of the way (id. at 52,288).
Integrity admits it received three summonses from the Department of Buildings for violations on January 18, 2018, related to the plaintiffs claims. Integrity admits being served with the DOB summonses for violations (Fernandez EBT at 115). Integrity filed a certificate of correction on March 9, 2018, requesting to cure the violation. On March 23, 2018, Integrity appeared for the hearing and was represented by counsel, Genesis Peduto, Esq., at the Office of Administrative Trials and Hearings (OATH) hearing on these violations (id. at 126). Contrary to Integrity's counsel's assertion in its moving papers that it only received a $400 fine, Integrity admits that it was actually assessed a $400 penalty for the flagmen violation and an additional, more significant $10,000 penalty for improperly installing and placing barriers around the lift (id. at 135-136).
Mr. Fernandez was present at the site at the time of the accident (Fernandez EBT at 50) and testified as follows: The Yodock barriers were supposed to be "plastic barriers filled with water" provided by Integrity (id. at 73). When not in use, the barriers were stored on the 16thStreet side of the worksite along the curb (id. at 82, 205). The sub-contractors that used the barriers were responsible for placing the barriers when they needed them and were told to notify Integrity if the barriers needed to be refilled with water (id. at 177). Integrity employees did not regularly inspect the barriers to see if they had to be refilled (id.). Mr. Fernandez testified that Integrity employees were supposed to fill these barriers (id. at 81). Based on that fact, Mr. Fernandez "assume[d] they were filled" (id. at 213). Mr. Fernandez testified that he did not personally inspect these barriers (id. at 84) and had no independent recollection of seeing these barriers filled (id. at 212).
Analysis
On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v. Citibank, 100 N.Y.2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
Labor Law § 240 (1)"The single decisive question [when assessing liability under Labor Law § 240 [1]) is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]). That question can be answered affirmatively even in cases where a plaintiff neither falls nor is struck by a falling object (see Johnsen v. State of New York, 207 A.D.3d 530, 531 [2d Dept 2022] [plaintiffs harm was caused by violent shaking of manlift]; see also Wilson v. Bergon Constr. Corp., 219 A.D.3d 1380, 1381- 82 [2d Dept 2023] [plaintiffs harm caused by bracing himself to prevent a fall from a scaffold]; Vislocky v. City of New York, 62 A.D.3d 785 [2d Dept 2009] [plaintiffs harm caused by bracing himself on an elevated platform while bending rebar]). Furthermore, "the availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures" (Conway v. New York State Teachers' Retirement Sys., 141 A.D.2d 957, 958-959 [1988]).
It is undisputed that the work plaintiff was performing at the time of his alleged injury was construction work, which is covered under the statute. Plaintiff contends that he was performing covered work when he was "caused ... to be thrown around in the interior of the bucket" because the Yodock barriers protecting the manlift from traffic failed to protect the lift from traffic (plaintiffs aff. at ¶ 7). Under the facts of this case, the Yodock barriers fall within the residual "other [safety] devices" category of Labor Law § 240 (1), and plaintiff has made out a prima facie case for summary judgment.
In opposition, defendants first contend that this action is not covered by Labor Law § 240 (1) because the plaintiff neither fell from a height nor had an object fall on him. The plaintiff was, however, working at an elevation and suffered harm because he was at that elevation. Pursuant to Runner, and under the Second Department holdings in Wilson, Johnsen, and Vislocky, a worker need not fall in order to be afforded the protection of Labor Law § 240 (1). Here, the plaintiff was exposed to an elevation-related risk and was furnished with inadequate safety devices, placing his claims within the purview of Labor Law § 240 (1).
Second, defendants' counsel contend that the barriers were properly filled and placed to protect the manlift. However, the testimony relied upon to make this argument appears to be aspirational and not based on personal knowledge, addressing what should have happened rather than what actually happened. Mr. Fernandez neither inspected these barriers himself nor had personal knowledge about them, testifying instead to an assumption about their condition. Mr. Fernandez's eventual testimony, based on observing the photographs, inferring that the ice and water on the ground came from a ruptured barrier is speculative and not based on personal knowledge (id. at 210).
Additionally, Mr. Fernandez does not deny the barriers were not continuous. In fact, Mr. Fernandez testified that the lift was brought into and out of the parking lane every day and that this occurred after the barriers were set in place (id. at 86). Mr. Fernandez also testified that the barriers could not be moved except with the forklift when they were filled (id. at 232). Based on these two propositions, either the barriers were not filled, were not continuous (because the lift would need to be maneuvered between them), or both. In either scenario, the safety device was insufficient to protect the workers in the manlift.
Finally, plaintiff contends that the OATH hearing has a collateral estoppel effect on the issue of whether there were flagmen on the site and whether the Yodock barriers were properly filled and placed. The doctrines of collateral estoppel and res judicata are "generally applicable to quasi-judicial administrative determinations that are 'rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law.'" That said, res judicata should be applied to an administrative determination "only if such application is consistent with the nature of the particular administrative adjudication" (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 A.D.3d 648, 651 [2d Dept 2013]). The purpose of an OATH hearing for a DOB violation is to determine whether safety regulations were violated at a worksite, endangering either workers or the public.
It is at least some evidence of a violation that Integrity appeared for the hearing through counsel and only contested the issue of whether the workers were injured, preserving that issue for the instant litigation. Additionally, the $10,000 fine against Integrity is also some evidence that at least its violations with respect to the barriers were not de minimis. The determination at the OATH hearing that both flagmen were absent from the site and that the barriers were defective, coupled with Integrity declining to challenge the summonses, serves as a tacit admission of the violations. Although Mr. Fernandez contends that the defective barriers that generated the summons were actually on 16th Street, and that the barriers on Kings Highway were already filled with water (id. at 133), this contention is undercut by Integrity's failure to raise opposition at the OATH hearing. The photographs that seem to show missing barriers or large gaps between barriers also lend credence to the determination at the OATH hearing.
Here, the court need not decide whether an OATH hearing has a res judicata or estoppel effect as the record here leads the court to the same outcome. Integrity's own moving papers concede that the "barriers failed" at precisely the task for which they erected-protecting the manlift from the dangers presented by its proximity to traffic (Integrity's aff. in opp. to plaintiffs motion at ¶ 16). The failure of the barriers, and the fact that this was the proximate cause of the plaintiffs accident, is sufficient to warrant summary judgement for the plaintiff under Labor Law § 240 (1) against Integrity and Kingsway.
Labor Law § 241 (6)To prevail on a cause of action pursuant to Labor Law § 241 (6), plaintiff must show that he was (1) on a job site, (2) engaged in qualifying work, and (3) suffered an injury (4) the proximate cause of which was a violation of an Industrial Code provision (Moscati v. Consolidated Edison Co. of N. Y, Inc., 168 A.D.3d 717, 718 [2d Dept 2019]). Industrial Code 23-1.29 establishes, inter alia, the necessary protections for construction work performed near a highway or public vehicular traffic that is hazardous to a person performing such work. There are two ways to satisfy Rule 23-1.29 (a). Either a "work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area" (Babcock v. Orange & Rockland Util., Inc., 179 A.D.3d 882, 882 [2d Dept 2020]), or traffic must be controlled by designated people (flagmen).
It is undisputed that the plaintiff was performing covered work on a job site at the time of the collision. Plaintiff contends that he suffered harm because the barricades around the manlift failed to direct traffic away from the area where he was working and that there were no designated flagmen at the site. In opposition, defendants contend that the lift upon which plaintiff was working was fully within a parking lane, had barriers placed around it, and that any question of the adequacy of those barriers is a question of fact for a jury.
Ultimately, the barriers provided by Integrity and placed by Lavada failed to direct public vehicular traffic away from plaintiffs lift. Moreover, Jason Espinal testified that he did not observe any flagmen around the lift (Espinal EBT at 55-56). Irrespective of Mr. Fernandez's testimony that flagmen were only necessary when the lift was in motion, the Industrial Code provision contains no such caveat. Accordingly, in the absence of either adequate barriers or designated traffic controllers, the plaintiff is awarded summary judgment on his claims under Labor Law § 241 (6) against Integrity and Kingsway.
Labor Law § 200Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work" (Pacheco v. Smith, 128 A.D.3d 926, 926 [2d Dept 2015]). Thus, claims for negligence and for violations of Labor Law § 200 are evaluated using the same negligence analysis (Ortega v. Puccia, 57 A.D.3d 54, 61 [2d Dept 2008]). "[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work. Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200. A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" (id. at [internal citations omitted]).
As an initial matter, plaintiff concedes that he does not have a viable Labor Law § 200 or common-law negligence claim against Kingsway (plaintiffs aff. in opp. to Kingsway's motion at ¶ 35). Defendant Kingsway's motion is therefore granted to the extent of dismissing plaintiffs Labor Law § 200 and common-law negligence claims against it.
Integrity's representative testified that Integrity oversaw safety and "told [the subcontractors] what to do" (Fernandez EBT at 167). Mr. Fernandez also testified that it was Integrity's responsibility to supervise the filling and placement of the barriers and that on the date of the plaintiffs accident Mr. Fernandez told Lavada's foreman he needed to install the barriers (id. at 223, 260). Lavada's witness, Sorbon Yobekov, testified that "Mannie" from Integrity would occasionally instruct Lavada workers on how to do their jobs (Yobekov EBT at 95-96, 98-99).
Although both unfilled or under-filled barriers and improperly placed barriers serve as predicates for statutory liability under Labor Law §§ 240 (1) and 241 (6), they have different implications with regard to negligence. If the barriers were improperly filled, negligence attaches to Integrity as it admitted its responsibility for maintaining the barriers. Although Integrity employees did not regularly inspect the barriers to see if they had to be refilled (Fernandez EBT at 177), they filled the barriers and Integrity would be liable if the barrels were improperly filled or otherwise defective. However, if the barriers were properly filled but improperly placed by Lavada, Integrity would only be statutorily liable as its employees did not place the barriers and there is no testimony that Integrity oversaw the actual placement of the barriers. Because questions of negligence are ordinarily fact-specific, they do not usually warrant summary judgment (see Ugarriza v. Schmieder, 46 N.Y.2d 471 [1979]). Here, there are material questions about Lavada's and Integrity's potential negligence that remain unresolved by the record before the court. Therefore, Integrity's motion and plaintiffs motion regarding plaintiffs Labor Law § 200 claim against Integrity only are denied.
Contractual Indemnification
The right to contractual indemnification is established by the "specific language of the contract" (Dos Santos v. Power Auth. of State of New York, 85 A.D.3d 718, 722 [2d Dept 2011]; quoting George v. Marshalls of MA, Inc., 61 A.D.3d 925, 930 [2d Dept 2009]). "In addition, a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Anderson v. United Parcel Serv., Inc., 194 A.D.3d 675, 678 [2d Dept 2021]).
Given the question of fact about its negligence, Integrity is not entitled to summary judgment on its indemnification claims-its motion is therefore denied.
Outlining Contractual Relationships
Defendant-owner Kingsway contracted with Integrity to provide services as a general contractor, and that contract contained an indemnification provision. Under that provision, Integrity is obligated to
defend, indemnify, and hold harmless the Owner ... from and against all liability ... to the extent arising or alleged to arise from: (1) the negligent acts or omissions in the performance of the Work under this Agreement, whether performed by the General Contractor, its Subcontractors and agents, or anyone employed by any of them or anyone for whose acts any of them may be liable;... or (3) other wrongful conduct of the General Contractor, its Subcontractors and agents, and anyone employed by any of them or anyone for whose acts any of them may be liable" (Kings way/Integrity contract at 10).
Integrity, in turn, sub-contracted with Vista ("Subcontractor Agreement"). That contract incorporated an exhibit titled "Subcontractor Indemnification Agreement." Under that agreement, the "Subcontractor" is obliged to "indemnify, defend, and hold harmless the Contractor... and all parties required by prime contract [sic] to be listed as additionally insured . .. [from all liability] arising out of or in connection with or as a consequence of the performance of the Work of Subcontractor under this agreement" (Subcontractor Indemnification Agreement at ¶ 6).
Finally, Vista sub-contracted with Lavada to perform exterior facade work. Vista's subcontract with Lavada, titled "Master Subcontract Agreement," contains an indemnification provision at paragraph 4. That provision requires the "Subcontractor" (identified in the preamble as Lavada) to indemnify and hold harmless the "contractor" (identified in the preamble as Vista) and the "owner, and all other parties the Contractor is obligated to indemnify and hold harmless" for "claims ... arising out of or resulting from the performance of Subcontractor's work" (Master Subcontract at ¶ 4). A certificate of liability insurance submitted as part of Kingsway's moving papers shows that Integrity and Kingsway were listed as additional insureds on Lavada's general liability policy.
Analyzing Contractual Responsibilities
Kingsway has demonstrated that its liability to the plaintiff is statutory, and therefore that contractual indemnification is legally available to it. Integrity, Vista, and Lavada all have contractual indemnification provisions that are favorable to the owner of the premises. Integrity and Lavada both admit to being present on the site and to involvement with the plaintiffs project at the time of his accident. Therefore, Kingsway's motion for contractual indemnification is granted as to Integrity and Lavada.
Kingsway's claim for contractual indemnification against Vista can be assessed alongside Vista's own motion. Vista has only one employee, its principal, Dalia Eilat (Eilat EBT at 14, 21). Ms. Eilat is an architect by training and testified that she visited the project infrequently (id. at 12,25). Vista was hired to provide the fagade systems that were specified for the Kings Highway project and sub-contracted with Lavada to install those systems (id. at 17, 20). Vista did not have any employees or representatives on the site at the time of the accident (Fernandez EBT at 180). There is no evidence to show that Vista had authority to direct or control the work-Ms. Eilat's visits to the site were solely for the sake of assessing progress and it is unrebutted that she did not have the authority to direct or control the work. Vista has therefore demonstrated that it is free from negligence. Vista's motion for summary judgment on its contractual indemnification claims against Lavada is granted.
However, Vista's own contractual indemnification obligation is not limited by its terms to Vista's own negligence. Rather, as previously cited, Vista's sub-contract predicates its contractual indemnification obligation on liability arising from, connected to, or consequential to its work or the work of its sub-contractors or employees. "[A] contract assuming [an indemnification] obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Assoc., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491-492 [1989]). Based on the evidence in the record, there remain questions of material fact as to, inter alia, whether plaintiffs accident arose from, was connected to, or was a consequence of the performance of Vista's work (which seems to involve predominantly architectural design) and whether plaintiffs accident was caused by Vista's sub-contractor (Lavada). Vista is therefore denied summary judgment summary judgment dismissing the contractual indemnification claims against it and Kingsway is denied summary judgment on its contractual indemnification claim against Vista.
Lavada contends that its indemnification responsibilities to the owner are voided because, in a rider to its own sub-contract, the "Owner" is identified "Kings highway [sic] Realty LLC," and not Kingsway. However, there is no registered corporation by the name of "Kings highway [sic] Realty LLC," and the totality of the circumstances clearly show that Kingsway was the owner of the premises and that Lavada incurred an obligation to indemnify the owner (see e.g. Skyline Enterprises of N.Y. Corp, v. Amuram Realty Co., Inc., 288 A.D.2d 292 [2d Dept 2001] [misnomer of corporate entity in a contract does not vitiate contractual obligation in light of clear intentions of the parties]). A typographical error is insufficient to relieve Lavada of this responsibility. Lavada's sub-contract otherwise contains clear indemnification responsibilities to Kingsway, Integrity, and Vista. Lavada's motion for summary judgment dismissing the contractual indemnification claims against it is, therefore, denied.
Conclusion
Plaintiffs motion for summary judgment (Seq. 009) is granted to the extent that: plaintiff is awarded summary judgment on his Labor Law §§ 240 (1) and 241 (6) claims against Kingsway and Integrity. Plaintiffs motion is denied as Labor Law § 200 against both parties.
Defendant Kingsway's motion for summary judgment (Seq. 010) is granted to the extent that plaintiff s Labor Law § 200 claim is dismissed against this defendant only, and Kingsway is awarded summary judgment on its contractual indemnification claims against Integrity and Lavada. The remainder of the motion is denied.
Defendant Integrity's motion for summary judgment (Seq. 011) is denied.
Second third-party defendant Vista's motion for summary judgment (Seq. 012) is granted to the extent of awarding Vista summary judgment on its contractual indemnification claim against Lavada. The motion is otherwise denied.
Lavada's motion for summary judgment (Seq. 013) is denied.
This constitutes the decision and order of the court.