Opinion
0112090/2005.
September 4, 2008.
DECISION/ORDER
Recitation, as required by CPLR § 2219 [a] of the papers considered to the review of this (these) motion(s): Papers Numbered
NYC, TCC, NYCC2004 n/m 3212 w/FJL affirm, exhs ............................... 1 opp w/BPH affirm, exhs .......................................................... 2 UBS opp w/DP affirm .......................................................... 3 NYC, TCC, NYCC2004 reply w/FJL affirm ........................................ 4 Upon the foregoing papers, the decision and order of the court is as follows:This is an action to recover monetary damages for alleged personal injuries arising from an incident that occurred on a sidewalk. The action was commenced with the filing of the summons and verified complaint on January 5, 2006. Although the note of issue has not been filed, issue was joined by the now moving defendants ("City," "Turner," and "NYCHC 2004") who now move for summary judgment against plaintiff and co-defendant Universal Builders Supply, Inc. ("UBS"). Plaintiff and UBS (separately) opposed the motion. Since the motion complies with the requirements of CPLR 3212 (a), it will be decided.
Arguments
Plaintiff Pamela Butkow ("plaintiff") alleges that on July 2, 2004 in the afternoon she fractured/dislocated her elbow when she tripped and fell over a piece of wire criss cross fencing ("fencing") that was on the ground. The incident occurred on the southwest corner of 33rd Street and 8th Avenue where the Republican National Convention Bridge Project was in progress. The owner of the project is defendant NYCHC 2004. NYCHC 2004 hired Turner as the construction manager of the RNC project. Turner entered into a subcontract with UBS to construct the RNC bridge ("UBS contract"). Plaintiff was deposed by the defendants who questioned her about the accident and what she observed. Plaintiff testified that she saw something that looked like a bridge being built across 8th Avenue and that there was construction on sidewalk. She noticed sawhorses and cement barriers to her left. There were also blue sawhorses in the street. According to plaintiff, these barriers and sawhorses directed pedestrian traffic off the sidewalk, into the street, and then back onto the sidewalk.
Plaintiff testified at her EBT that she had not completely cleared the construction area of the bridge, but had stepped back onto the sidewalk when her accident happened. She did not see the fence on the ground until after she fell down. Plaintiff could neither recall the size nor shape of the fencing. At her deposition, however, she (with the assistance of counsel) estimated the piece of fencing as being about the size of four (4) ceiling tiles in the room where she was being deposed. The deposition transcript shows that the people present estimated the tiles were 2 feet each and therefore the fence was at least 8 feet.
The construction area that plaintiff passed by was enclosed by fencing. She testified that there was active construction going on and she heard banging and drilling as she lay on the ground. Following her accident, a man who identified himself as "the site manager," came over to talk to her, but she did not get his name. He was wearing an orange and tan vest. When asked whether she noticed any portion of the fence missing or open, plaintiff could not recall and testified she had not noticed.
The City, Turner and NYCHC 2004 ("moving defendants") argue that plaintiff cannot prove that they either created, or had notice of, the dangerous condition plaintiff alleges existed at the time of her accident. They argue that if there was a dangerous condition, it was created by UBS because UBS was solely and entirely responsible for obtaining the necessary permits to build the bridge, and all aspects of building it, including the rerouting of pedestrian traffic.
Turner provides a copy the UBS contract. Under the contract UBS was required to "perform and furnish all the work, labor, services, material, plant, equipment, tools, scaffold, appliances and other things necessary for the Bridge Walkway Platform [and other work]. . ."
Turner's project executive was deposed ("Negrycz"). Negrycz testified that he only visited the RNC project "as needed" and that Turner did not have a safety officer present at the construction site. According to Negrycz's testimony, there was only one other Turner employee on site. This was the project manager ("Benjamini") who was responsible for interfacing with UBS by providing it with the information necessary for UBS to do its job.
The moving defendants argue that the testimony by Brian Buckingham, UBS's carpenter foreman, proves that UBS was responsible for deciding where and how the barriers would be installed. Buckingham testified that UBS used chain link fencing to prevent pedestrians from entering certain areas. Buckingham was physically present onsite at the RNC project when the accident happened.
In addition to seeking the dismissal of the plaintiff's complaint, the moving defendants argue that they are entitled to summary judgment on their indemnification claims under Article XXIII of the UBS contract because UBS was negligent and this action "arises out of UBS's work.
Plaintiff opposes the moving defendants' motion on the basis that discovery is incomplete, and therefore this motion is premature, at least insofar as Turner is concerned is premature. She has now learned the identity and whereabouts of Turner's site safety person ("Hall"), no longer employed by Turner. This information was provided by Turner in a letter dated March 26, 2008, several months after the defendants brought this motion. Hall lives in Georgia and plaintiff is in the process of securing an open commission for his deposition. Plaintiff maintains that Hall may shed light on the issue of whether Turner knew, or in the exercise of reasonable care, should have known, of the dangerous condition existing at the RNC project site. According to Benjamini, Hall, another Turner employee was at the construction site every day. Benjamini also testified that Turner was involved in "sectioning off the construction work from the public walkways," although it was UBS that employed flagmen whom directed traffic.
Plaintiff argues that the City and NYCHC 2004 should not be granted summary judgment because they have a nondelegable duty to maintain a safe premises, and what the work being done at the time of her accident was inherently dangerous.
UBS opposes the moving defendants' motion on the basis that the moving defendants failed to a cross claim for contractual indemnification, but their claim is only for common law indemnification. Moreover, UBS argues that even if they did assert a contractual indemnification claim, summary judgment on that claim is premature because there are unresolved questions of fact as to the proximate cause of plaintiff's accident. In response, the moving defendants argue their indemnification claim is broadly stated and that UBS could have demanded, but fail to demand, a Bill of Particulars. Thus, the moving defendants argue the indemnification claim is both contractual and common law. They also deny any active negligence on their part.
Discussion
As the proponent of this motion for summary judgment, the moving defendants must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact.Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
A party may not defeat a motion for summary judgment with bare allegations of unsubstantiated facts. Zuckerman v. City of New York, supra at 563-64. In order to defeat defendant's motion, plaintiff must set forth facts that tend to show the defendant created the defect at issue or negligently repaired the sidewalk. See: Elmy v City of Amsterdam, 25 AD3d 1038, 1040 (3rd Dept.) lv denied, 6 NY3d 713 (2006). Where it appears that facts essential to justify opposition may exist but cannot then be stated, the court may deny a motion for summary judgment and permit an opportunity for discovery. CPLR ¶ 3212 (f); R.C.S. Farmers Markets Corp. Best Section End v. Great Amer. Ins. Co., 56 N.Y.2d 918, 920-921 (1982).
Plaintiff contends that discovery is incomplete because she only learned Turner had a site safety manager by the name of Peter Hall after this motion was brought. Initially Turner denied it had a site safety manager, but Turner has now provided plaintiff with Hall's last known address which is outside the state of New York. Hall's testimony may lead to facts supporting plaintiff's claims and therefore, Turner's motion is premature and must be denied on that basis alone. Global Materials and Metals Corp. v. Holme, supra at 102-3.
Even were the court to decide that Turner's motion is not premature, there are triable issues of fact. There is inconclusive testimony about how long the piece of fencing material was on the ground, where it came from, and whether it was put there or fell there. Although Turner argues that the fence "must have" come from UBS and therefore UBS was negligent, Turner has not met its burden of proving either that UBS was negligent, or its own freedom from negligence.
The City and NYCHC 2004 are the owners of the property and have a duty to maintain their property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party.Perez v. Bronx Park South, 285 AD2d 402 (1st Dept 2001). A property owner, however, is ordinarily not responsible for the negligence of an independent contractor retained to work upon its property. see Rosenberg v. Equitable Life Assur. Socy. of the United States, 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765 (1992). There is an exception to this broad rule where the work being performed was known by the owner to be "inherently dangerous." Kopinska v. Metal Bright Maintenance Company, Inc., 309 A.D.2d 633, 634 (1st Dept 2003); see also Deljanin v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 12 Misc.3d 1158(A) (N.Y.Sup 2006) ( and cases cited therein).
The condition that resulted in plaintiff's accident involved fencing left on the ground. Plaintiff has failed to raise an issue of material fact whether the property owners knew that the fencing on the ground posed a hazard to people on the sidewalk. Compare Kopinska v. Metal Bright Maintenance Company, Inc., supra ( bleach being used to clean a building); Deljanin v. St. Nicholas Cathedral of Russian Orthodox Church in North America, supra ( cherry picker on sidewalk).
The owners contend they received no complaints about nor did they have notice of a dangerous condition at the premises. Plaintiff has failed to raise any triable issue of fact that the defendants did have prior written notice of the particular condition she claims existed at the time of her accident (fencing material on the ground), as is required by N.Y.C. Admin. Code § 7-201 (c)(2). Therefore, the plaintiff's complaint against the City and NYCHC 2004 must be, and hereby is, dismissed against these defendants. Jameer v. Fine Fare Express, Inc., 279 A.D.2d 256 (1st Dept 2001).
Although UBS argues that Turner did not set forth a claim for contractual indemnification, the court decides that the claim for indemnification is couched in broad enough language to encompass both a claim for contractual and common law indemnification. UBS also opposes the motion on the basis that an indemnification clause in a contract is not triggered until there is a definitive finding of negligence on the part of the indemnitor. Although the court, in certain circumstances, may render conditional judgment on the issue of indemnification, an indemnification contract which conditional judgment on the issue of indemnification, an indemnification contract which authorizes indemnification for the general contractor's own negligence is void as against public policy and unenforceable. Therefore, until the issue of Turner's negligence (or freedom from negligence) is decided, the issue of whether UBS has to indemnify Turner cannot be decided. See General Obligations Law § 5-322.1; Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786, 795 (1997). Therefore, Turner's motion is premature, it must be denied for that reason.
Conclusion
The motion by Turner, the City and NYCHC 2004 for summary judgment dismissing plaintiff's complaint is granted as to the City and NYCHC 2004 for the reasons stated, but denied as to Turner because discovery is incomplete. The motion for indemnification is also denied.
This case is already scheduled for a status conference on October, 2008. That date, however, conflicts with the court's schedule. It is hereby adjourned to October 16, 2008 at 9:30 a.m. in Part 10. No further notices will be sent.
Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.
This constitutes the decision and order of the court.