Opinion
No. 007864/12.
09-15-2014
Edwin CALANDRO, Jr. and Melissa Calandro, Plaintiffs, v. AVALON BAY COMMUNITIES, INC. and J.P. Hunter Enterprises, Inc. d/b/a Hunter Insulation, Defendants.
Siben, Bay Shore, for Plaintiffs. Harrington, Ocko & Monk, LLP, Avalon Bay Communities, Inc., White Plains, Lieberman, Strauss & Shrewsbury, JP Hunter Enterprises, Inc., Hawthorne, for Defendant/Third–Party Defendant.
Siben, Bay Shore, for Plaintiffs.
Harrington, Ocko & Monk, LLP, Avalon Bay Communities, Inc., White Plains, Lieberman, Strauss & Shrewsbury, JP Hunter Enterprises, Inc., Hawthorne, for Defendant/Third–Party Defendant.
Opinion
RANDY SUE MARBER, J.
Upon the foregoing papers, the Third–Party Defendant/Fourth–Party Plaintiff, P.C. Richard & Son's (“PC Richard”), motion (Mot.Seq.04), pursuant to CPLR § 3212, seeking an Order granting it summary judgment dismissal of the Third–Party Complaint, and all Cross-claims and Counterclaims as asserted against it; the Defendant, J.P. Hunter Enterprises, Inc. d/b/a Hunter Insulation's (“JP Hunter”), motion (Mot.Seq.05), pursuant to CPLR § 3212, seeking an Order granting it summary judgment dismissal of the Plaintiffs' complaint in its entirety, and all Cross-claims and Counterclaims as asserted against it; and the Defendant, Avalon Bay Communities, Inc.'s (“Avalon Bay”), Cross-motion (Mot.Seq.06), pursuant to CPLR § 3212, seeking an Order granting it summary judgment dismissal of the Plaintiffs' Complaint in its entirety, and all Cross-claims and Counterclaims as asserted against it, are determined as provided herein.
This action stems from an accident which occurred on August 5, 2011 in which the Plaintiff, Edwin Calandro, claims that he tripped over an insulation hose while in the process of delivering and installing a washing machine at an apartment at the premises owned by the Defendant, Avalon Bay.
Specifically, in August 2011, Avalon Bay was in the process of constructing a two building apartment complex in Rockville Centre with each building being three stories high and containing approximately 210 and 139 units, respectively. The building owner, Avalon Bay, was also the general contractor for the construction project.
On July 29, 2010, Avalon Bay entered into a contract with JP Hunter pursuant to which JP Hunter agreed to install spray-applied insulation in the buildings' attics. Pursuant to the terms of the contract, JP Hunter procured general liability insurance naming Avalon Bay as an additional insured. The contract between Avalon Bay and JP Hunter also contained an indemnification provision, pursuant to which JP Hunter agreed to “defend, indemnify and save harmless OWNER (Avalon Bay)” from any personal injury claims arising from JP Hunter's work.
At the time of this accident, the Plaintiff, in the course of his employment with the Fourth–Party Defendant, G. Lamagna Trucking, Inc. (“Lamagna”), was delivering appliances supplied by the Third–Party Defendant, P.C. Richard & Son, to the apartment complex. Specifically, PC Richard retained non-party, Lipari Trucking, to deliver and install the appliances at the Avalon Bay complex. Lipari Trucking, in turn, subsequently subcontracted the appliance installation to Lamagna Trucking, the Plaintiff's employer. Notably, these contracts and subcontracts are not provided to this Court on these papers, infra.
At the time of his accident, the Plaintiff was working with Greg Lamagna, the principal and owner of his employer company, Lamagna Trucking. The Plaintiff and Greg Lamagna were carrying the washing machine with a strap provided by the Defendant, Lamagna. At the time of his accident, the Plaintiff was walking backwards toward the closet in which the appliance was to be installed. He testified at his Examination Before Trial, that he stepped over the subject insulation hose with his left foot and as he was stepping back with his right foot, he made contact with the insulation hose causing him to trip and fall, which in turn, resulted in the washing machine falling on top of him.
The Plaintiff testified that the insulation hose was blowing insulation into the attic throughout the entire day of the Plaintiff's accident. The hose was installed by the Defendant, JP Hunter, and measured three to four inches in diameter and ran through the apartment where the Plaintiff was allegedly injured. Apparently, because other trades also needed access to the area, Avalon Bay had advised JP Hunter of certain areas of the building that it could and could not use for its work. Ultimately, the route of the hose was determined by JP Hunter.
Despite allegedly tripping over the hose, the Plaintiff admits to observing the hose on several occasions prior to, and on, the date of the accident. In addition, it is undisputed on this record that the Plaintiff walked over the hose 5 to 6 times without incident before his alleged fall, was aware of the hose at all times before the accident, stepped over it with one leg, warned his boss about it, and failed to ask for any assistance in avoiding the hose, prior to allegedly tripping over it. It is equally undisputed on this record that during the three weeks of work, JP Hunter never received any complaints about the positioning of the hose, and had never observed any workers trip over the hose, prior to the Plaintiff's accident.
The Plaintiffs commenced an action against Avalon Bay (the building owner and general contractor) and JP Hunter (the insulation contractor and the owner of the hose) advancing claims of Labor Law §§ 200, 240(1), 241(6), and common law negligence. The Plaintiff, Melissa Calandro's claims are derivative in nature.
It is noted at the outset that the Plaintiffs, in their opposition to the Defendant, JP Hunter's motion for summary judgment, “concede” that Labor Law § 240(1) and Labor Law § 241(6) do not apply to the Defendant, JP Hunter, infra.
Avalon Bay, in turn, commenced a Third–Party suit against P.C. Richard & Son (the appliance provider) seeking contribution and indemnification based upon common law negligence and their contract.
P.C. Richard & Son, in turn, brought a Fourth–Party action against Lamagna Trucking, Inc. (the Plaintiff's employer).
In its motion, Avalon Bay asserts three principal bases for summary judgment. First, it asserts that the Plaintiffs' claims under Labor Law § 240(1) are not applicable to the case at hand as this accident does not involve any type of elevation differential or elevation related risk so as to invoke the extraordinary protection of this statute. Second, it asserts that the Plaintiffs' claims under Labor Law § 241(6) are also meritless as the Plaintiff cannot prove the applicability or violation of any Industrial Code regulation and insofar as the Plaintiff relies upon Industrial Code § 23–1.7(e)(2), said regulation is inapplicable as the insulation hose was actively being used in the construction and was “integral to the work being performed” and therefore does not constitute a “tripping hazard” under the regulation. Lastly, it asserts that the Plaintiffs' claims under Labor Law § 200 and the common law are meritless as the Plaintiff was a workman who was “confronted with the ordinary and obvious hazards of his employment and had at his disposal the time and other resources to enable him to proceed safely, but elected to perform his job so incautiously as to injure himself.”
JP Hunter advances five bases for its entitlement to summary judgment. First, that Labor Law §§ 200, 240(1) and 241(6) do not apply to it as it is not an owner, general contractor or statutory agent of the owner or subcontractor as defined by the Labor Law. Second, Labor Law § 240(1) is inapplicable as the alleged incident did not arise from a fall from a height or from being struck by a falling object. Third, Labor Law § 241(6) is inapplicable as the Plaintiff is unable to prove a violation of a specific and applicable Industrial Code provision. Fourth, the alleged condition was open and obvious. Lastly, it asserts it was not negligent as a matter of law and as there was no breach of contract between the parties, all cross-claims as asserted against it should also be dismissed.
Finally, PC Richard asserts three bases for its entitlement to summary judgment dismissal of the Third–Party Complaint which seeks common law contribution and indemnification as well as contractual indemnification. First, it asserts it did not have any duty to maintain the property and it did not create the alleged dangerous condition causing the Plaintiff's fall; thus, there is no evidence that it was negligent in any way such that Avalon Bay would be entitled to common law indemnification or contribution. Second, it asserts it did not have any authority to supervise or control the premises in which the Plaintiff was injured; thus it cannot be held liable under Labor Law § 200 or the common law. Lastly, it asserts the incident which gives rise to this lawsuit does not trigger the indemnification agreement contained within the purchase order between Avalon Bay and PC Richard.
The standards for summary judgment are well-settled.
“On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact, and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers.”
(Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted] ).
Labor Law §§ 240(1) and 241(6) claims:
As noted above, the Plaintiffs “concede” that Labor Law § 240(1) and Labor Law § 241(6) do not apply to the Defendant, JP Hunter. Indeed, counsel for the Plaintiff states in his affirmation in opposition to JP Hunter's motion, that “... Hunter was neither an owner, contractor and/or agent against whom either such cause of action would lie. As such, the Plaintiff will not oppose the granting of summary judgment to said Defendant, Hunter, dismissing the § 240 and § 241(6) claims on that particular ground” (Aff. In Opp., ¶ 69).
Accordingly, the Defendant, JP Hunter's motion (Mot.Seq.05) seeking summary judgment dismissing the Plaintiffs' Labor Law §§ 240(1) and 241(6) claims is GRANTED. Said claims are dismissed as against JP Hunter.
Notably, the Plaintiff's Labor Law § 240(1) claims as against Avalon Bay are also DISMISSED.
Labor Law § 240(1) provides, in pertinent part, as follows:
All contractors and owners and their agents, * * * who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, shall furnish or erect, or caused to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.* * *
The statute mandates the imposition of “absolute liability” and is deemed to create a statutory cause of action unrelated to questions of negligence (Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 977 [2003] ; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 522 [1985] ).
The statute was ordinarily read to be impliedly limited to those accidents and injuries that arose from elevation-related hazards where the plaintiff was exposed to “extraordinary elevation risks” of the kind that safety devices listed in the Labor Law § 240(1) protect against (Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681 [2007] ; Toefer v. Long Is. R. R., 4 NY3d 399 [2005] ) and not just usual and ordinary dangers of a construction site. In other words, the statute ordinarily protected against only specific gravity related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494 [1993] ; Rocovich v. Consolidated Edison, Co., 78 N.Y.2d 509 [1991] ).
In 2009, however, the Court of Appeals in Runner v. New York Stock Exchange, Inc., 13 NY3d 599 [2009], determined that prior cases read Labor Law § 240(1) too narrowly and explained that “[t]he breadth of the statute's protection has ... been construed to be less wide than its text would indicate” (Runner v. New York Stock Exchange, Inc., supra at 603). As a result, the Court of Appeals in Runner v. New York Stock Exchange, Inc., supra, re-framed and reiterated the applicable rule in Labor Law § 240(1) stating as follows:
“[T]he dispositive inquiry ... does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential ” (Id. at 603 [Emphasis Added] ).
The Court of Appeals thus turned the inquiry of the “single decisive question” into whether the elevation differential was “physically significant” versus “de minimis” instructing that in determining whether an elevation differential is “physically significant,” “the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent,” must be taken into account (Id. at 605 ; see Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 NY3d 1, 10 [2011] ).
In addition the Court of Appeals in Runner also ruled that liability under the statute in a falling object case “does not ... depend upon whether the object has hit the worker”; it determined that the “relevant inquiry” in that case is “whether the harm flows directly from the application of the force of gravity to the object” (Runner v. New York Stock Exchange, Inc., supra at 604).
Notably, despite the more expansive reading of Labor Law § 240(1), the Runner Court did not overturn the core holdings of Ross and Rocovich which held that “Labor Law § 240(1)[is] aimed only at elevation related hazards” (Wilinski v. 334 East 92nd Housing Development Fund Corp., supra at 7). Rather, as explained above, the Runner Court clarified the law in two respects. First, the statute's reach is not to be limited to falling worker cases or falling object cases in which the object directly strikes the worker (Runner v. New York Stock Exchange, Inc., supra at 604). And, second, the weight and force of the object during descent must be considered in determining whether a height differential is de minimis (Id. at 605). Indeed, the Runner Court never held that a height differential could never be de minimis when an accident was “gravity related”; nor did the Court overturn its prior cases finding height differentials to be insufficient to sustain liability despite harm flowing directly from application of the force of gravity to an object. It merely created a third breed of cases protected under Labor Law § 240(1) ; in addition to falling worker and (traditional) falling object cases, it now expanded Labor Law § 240(1) protections to include those scenarios where a worker is caused to fall as a result of a falling object.
Significantly, in 2011, the Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., supra, reaffirmed its holding in Runner. The Court of Appeal's reasoning that the scope of Labor Law § 240 has “evolved” such that the statute's “core purpose” is now “to provide workers with adequate protection from reasonably preventable, gravity-related accidents”, advanced its best pronouncement of the more expansive application of Labor Law § 240(1) stating therein that the “single decisive question” regarding this limitation is whether the worker's injuries “were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential' “ (Wilinski v. 334 East 92nd Housing Development Fund Corp., supra at 10, quoting, Runner v. New York Stock Exchange, Inc., supra at 603). The Wilinski Court expanded the protections of Labor Law § 240(1) to include a more generalized risk stemming from a “physically significant” elevation differential (Wilinski v. 334 East 92nd Housing Development Fund Corp., supra at 7; Salazar v. Novalex Contr. Corp., 18 NY3d 134, 139 [2011] ).
Thus, ultimately, entitlement to recovery under Labor Law § 240(1) requires a demonstration of two things: (1) a violation of the statute-i.e., a failure of the defendant to provide the required protection at a construction site-proximately caused the plaintiff's injury; and, (2) that the “injury sustained is the type of elevation related hazard to which the statute applies” (Wilinski v. 334 East 92nd Housing Development Fund Corp., supra at 7; see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288–289 [2003] ).
Here, in seeking summary judgment, Avalon Bay submits that as the Plaintiff fell at ground level, and as his work did not involve any type of elevation related risk so as to require any of the safety devices required by Labor Law § 240(1), this accident involved only the usual and ordinary type of hazards at a construction site, namely tripping over construction material and therefore the protections outlined in Labor Law § 240(1) was not required.
The Plaintiffs oppose the motion and relying upon, inter alia, Runner v. New York Stock Exchange, Inc., supra, argue that recent authorities stand for the proposition that even a small elevation differential is within the contemplated scope of the scaffold law where the weight of the object being hoisted is such that it will generate substantial force over the course of its descent and that this is sufficient to raise a material issue of fact as to whether the Plaintiff in this case sustained an elevation related injury when the washing machine, which he was carrying, was caused to fall upon him.
It is noted, at the outset, that contrary to the Plaintiff's contention herein, this is not a falling object case-not in the traditional sense (where the plaintiff is injured by a falling object); nor in the more recent Runner sense (where the plaintiff's harm flows directly from the application of the force of gravity to the object). Rather, this is a falling worker case (see e.g, Soltero v. City of New York, 93 AD3d 578 [1st Dept.2012] ; Brownell v. Blue Seal Feeds, Inc., 89 AD3d 1425 [4th Dept.2011] ; Rendino v. City of New York, 83 AD3d 540, 541 [1st Dept.2011] ).
It is true that the Plaintiff and the washing machine in this case were not on the same level; that is, there was indeed an elevation differential between the Plaintiff and the object (washing machine) which he and his co-worker were carrying at hip level. However, unlike the plaintiff in Runner, the Plaintiff herein was not injured as a result of the amount of force that the machine was able to generate. Indeed, this Court cannot overlook the fact that the washing machine did not fall; rather, it was the Plaintiff who tripped and fell (causing the washing machine to fall on top of him). In fact, had the Plaintiff not tripped over the insulation hose, there is no evidence, or theory, or even allegation that the washing machine would nonetheless have fallen onto the Plaintiff as a result of gravity being applied to the machine. The fall herein resulted from the application of the force of gravity to the Plaintiff, and not to the washing machine. To that extent, given the undisputed evidence herein, this Court finds that “the impetus for the [washing machine's] fall was the Plaintiff's tripping on ground level, rather than the direct consequence of gravity” to the appliance (Ghany v. BC Tile Contractors, Inc., 95 AD3d 768 [1st Dept.2012] ).
As such, there is no evidence on this record to substantiate the Plaintiff's Labor Law § 240(1) claim against Avalon Bay.
Moreover, and in any event, even if this Court construes the facts of this case so as to satisfy the Runner standard of a falling object case, there is nonetheless no evidence presented on this record that the Plaintiff's injuries were the direct consequence of the Defendant, Avalon Bay's failure to provide adequate protection against a risk from a physically significant elevation differential (Wilinski v. 334 East 92nd Housing Development Fund Corp., supra at 10). Indeed, there is no evidence in this case to establish that this fall was an “elevation-related” risk, much less one that was based upon a “physically significant” elevation differential or that called for the Defendant to have provided any of the protective devices of the types listed in Labor Law § 240(1). To the contrary, this Court finds that the Plaintiff was exposed to the “usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240(1) ” (Rodriguez v. Margaret Tietz Ctr. for Nursing Care, Inc., 84 N.Y.2d 841, 843 [1994] ; Alvia v. Teman Elec. Contr., 287 A.D.2d 421 [2d Dept.2001] ). Accordingly, even assuming that this case was one in line with the Runner sequence of cases, this Court nonetheless finds that the Plaintiff's fall herein does not come within the ambit of Labor Law § 240 (Brownell v. Blue Seal Feeds, Inc., supra).
Thus, the Plaintiff's cause of action based upon a violation of Labor Law § 240(1) is herewith DISMISSED as against Avalon Bay (Toefer v. Long Is. R.R., supra; Rocovich v. Consol. Edison Co., supra at 514–515).
Also dismissed are the Plaintiff's Labor Law § 241(6) claims as against Avalon Bay.
Section 241 (6) of the Labor Law provides:
§ 241. Construction, excavation and demolition work
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
* * *
6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
It is incumbent upon the plaintiff proceeding under Labor Law § 241(6) to show that some “concrete specification” in the regulations was violated and also that this was a substantial factor in causing the subject accident (Ross v. Curtis–Palmer Hyrdo–Electric Company, supra; Morrison v. City of New York, 5 AD3d 642 [2d Dept.2004] ). Once this threshold is met, a Labor Law defendant can be held vicariously liable for the regulatory violation even in the absence of notice thereof (Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 349–350 [1998] ). That is, while the statute does not impose “absolute liability” it does impose a “nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein” (Id. at 350 ). Therefore, once it is established that any construction site participant either caused or negligently allowed a condition violative of any of the “concrete” specifications of the Industrial Code, then the owner or general contractor is vicariously liable, subject to comparative negligence, irrespective of whether said defendant had notice of the condition.
Here, the Plaintiff's Labor Law § 241(6) claim is based chiefly on violations of the Industrial Code §§ 12 NYCRR 23–1.5, 12 NYCRR 23–1.7(d), 12 NYCRR 23–1.7(e)(1) and 12 NYCRR 23–1.7(e)(2). None of these regulations, however, support a Labor Law § 241(6) cause of action in this case.
Specifically, 12 NYCRR § 23–1.5 entitled “General Responsibility of Employers” sets forth a general standard of care and, thus, does not serve as a predicate for liability pursuant to Labor Law § 241(6) (Ulrich v. Motor Parkway Properties, LLC, 84 AD3d 1221 [2d Dept.2011] ; Pereira v. Quogue Field Club of Quogue, Long Is., 71 AD3d 1104 [2d Dept.2010] ).
Similarly, 12 NYCRR § 23–1.7(d) is also insufficient to support the Plaintiff's Labor Law § 241(6) claim. Section 23–1.7(d) entitled “Slipping hazards” states:
Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface resulting in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.
First, this section is inconsistent with the Plaintiff's allegation which states that he “tripped” over the insulation hose, and did not slip on any foreign substance. Second, to the extent that the Plaintiff “slipped” on the insulation hose, there is no evidence that the hose was a foreign substance or a slipping hazard identified in the regulation (Galazka v. WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 789–790 [2d Dept.2008], lv. denied 12 NY3d 709 [2009] ; Stafford v. Viacom, Inc., 32 AD3d 388, 390 [2d Dept.2006] ;). Lastly, there is no evidence that the Plaintiff's accident was the result of the Defendant's failure to remove or cover a foreign substance contemplated by 12 NYCRR 23–1.7(d) (Croussett v. Chen, 102 AD3d 448 [1st Dept.2013] ).
Industrial Code regulation 12 NYCRR § 23–1.7(e)(1) is also inapplicable to the Plaintiff's Labor Law § 241(6) claim. 12 NYCRR § 23–1.7(e)(1) provides:
(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.Although this Industrial Code provision is sufficiently specific to support a Labor Law § 241(6) claim (Jara v. New York Racing Ass'n, Inc., 85 AD3d 1121 [2d Dept.2011] ), the facts of this case make it clear that the accident did not take place in a “passageway;” rather, the facts are clear that the Plaintiff's accident occurred in the open apartment and attic space undergoing construction at Avalon Bay. Indeed, there is also no evidence that the Plaintiff was using the otherwise open area as a “passageway” when the accident occurred (Parker v. Ariel Associates Corp., 19 AD3d 670 [2d Dept.2005] ; Salinas v. Barney Skanska Constr. Co., 2 AD3d 619, 622 [2d Dept.2003] ).
Finally, Industrial Code § 23–.7(e)(2) entitled “Tripping Hazards” is also insufficient to substantiate the Plaintiff's Labor Law § 241(6) claim. This regulation requires owners and contractors to maintain working areas free from tripping hazards such as, inter alia, debris and any other obstructions, “insofar as may be consistent with the work being performed” (12 NYCRR § 23–1.7 [e][2] ). This regulation “is designed to protect against tripping hazards and sharp projections on floors and platforms' “ (Cooper v. State of New York, 72 AD3d 633, 635 [2d Dept.2010]quoting Fura v. Adam's Rib Ranch Corp., 15 AD3d 948, 949 [4th Dept.2005] ).
The evidence submitted herein, including the Plaintiff's testimony, shows that the insulation hose that allegedly caused him to fall was being used and blowing insulation at the time of the accident. There is no claim or evidence that the hose was not integral to the ongoing work. Indeed, it is also clear that the subject insulation hose had been purposefully laid at that location and therefore did not constitute “loose or scattered” material (DeLiso v. State of New York, 69 AD3d 786 [2d Dept.2010] ). Accordingly, the Plaintiff's claim of a violation of 12 NYCRR § 23–1 .7(e)(2) is also defeated (Burkoski v. Structure Tone, Inc., 40 AD3d 378, 383 [1st Dept.2007] ).
Having failed to establish the violation of a concrete specification in the regulations which were also a substantial factor in causing this accident, the Plaintiff's Labor Law § 241(6) claims are herewith DISMISSED.
Labor Law § 200 and Common Law Negligence:
Labor Law § 200, which mandates that all workplaces be so constructed, equipped, arranged, operated and conducted as to provide “reasonable and adequate protection” to the persons employed there, is a codification of the common law duty of an owner or general contractor to provide and maintain a safe construction site (Labor Law § 200[1] ; Rizzuto v. L.A. Wenger Contr. Co., supra at 352; Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876 [1993] ). As such, liability can be imposed under Labor Law § 200 only if the party charged with violating it was negligent; that is, the defendant cannot be held liable unless it knew or should have known of the condition or work practice in issue and had the ability or authority to correct it (Ortiz v. I.B.K. Enterprises, Inc., 85 AD3d 1139 [2d Dept.2011] ).
Generally Labor Law § 200 claims fall into two broad categories; to wit, those involving injuries arising from an allegedly defective and dangerous premises condition and those involving injuries arising from the manner in which the work is performed (Ventimiglia v. Thatch, Ripley & Co., LLC, 96 AD3d 1043 [2d Dept.2012] ).
Where the accident was purportedly caused by an unsafe work practice-the means and methods of the work-the defendant will not stand liable under Labor Law § 200 unless it: (a) knew or should have known of the unsafe practice; and (b) had “supervisory control” over the unsafe activity (Robinson v. County of Nassau, 84 AD3d 919, 920 [2d Dept.2011] ). That is, the owner and general contractor can be held liable for common law negligence and violation of Labor Law § 200 if the defendant knew or should have known of the unsafe work practice and had “supervisory control” over the activity (Rodriguez v. Gany, 82 AD3d 863 [2d Dept.2011] ; Mancuso v. MTA New York City Transit, 80 AD3d 577 [2d Dept.2011] ). They cannot be held responsible for a contractor's unsafe work practices or defective equipment if they did not actually supervise or control the contractor's work (Ghany v. BC Tile Contractors, Inc., supra). To that extent, the mere fact that the owner may be intermittently present or retain the power to stop the work does not mean that the owner had control over the contractor's work methods and can be held liable in common law or under Labor Law § 200 for an unsafe work practice (Harrison v. State of New York, 88 AD3d 951 [2d Dept.2011] ; Foley v. Consolidated Edison Co. of New York, Inc., 84 AD3d 476 [1st Dept.2011] ). In addition, an owner or general contractor's general control over the project as a whole does not of itself constitute the kind of close supervision that will render such a defendant responsible for the contractor's work methods (Phillip v. 525 East 80th Street Condominium, 93 AD3d 578, 579–580 [1st Dept.2012] ; McKee v. Great Atl. & Pac. Tea Co., 73 AD3d 872 [2d Dept.2010] ).
On the other hand, where the injury producing condition was a premises hazard, liability is imposed where the defendant either created the condition or had actual or constructive notice of its existence. In the “defective/dangerous premises condition” line of cases, it is not a defense that the defendant lacked control over the means and methods of the work (Fuger v. Amsterdam House of Continuing Care Retirement Community, Inc., 117 AD3d 649, 650 [1st Dept.2014] ; Burton v. CW Equities, LLC, 97 AD3d 462 [1st Dept.2012] ). Specifically, where the accident is caused by a premises defect, liability can be imposed irrespective of the defendant's control over the details of the work (Ventimiglia v. Thatch, Ripley & Co., LLC, supra; Sotomayor v. Metropolitan Transportation Authority, 92 AD3d 862 [2d Dept.2012] ). Liability therein is not a function of the defendant's control over the work alone; it is instead a function of the defendant's creation of the hazard or actual or constructive notice of the hazard plus control over the area in issue (Dalvano v. Racanelli Construction Company, Inc., 86 AD3d 550 [2d Dept.2011] ; Harsch v. City of New York, 78 AD3d 781, 782–783 [2d Dept.2010] ).
Here, while the Plaintiffs appear to classify their common law negligence and Labor Law § 200 theories against JP Hunter (insulation contractor and owner of the hose) on “defective and dangerous premises condition” line of cases (see also Aff. In Opp. to JP Hunter Motion, ¶ 50), as against Avalon Bay (owner and general contractor), the Plaintiffs do not make any distinctions and submit that Avalon Bay is chargeable with both actual prior notice as to the existence of the dangerous and defective condition as well as whether said moving Defendant possessed and did exercise the requisite responsibility to supervise and control the subject work (see also Aff. In Opp. to Avalon Bay Motion, ¶ 66).
To that extent, this Court notes that in 2011, the Second Department laid out the rules governing those cases where a worker's injury may be concurrently caused by both an alleged dangerous or defective premises condition and by dangerous and defective equipment. In Reyes v. Arco Wentworth Management Corporation, 83 AD3d 47, 51 [2d Dept.2011], the Second Department stated:
In determining how to resolve cases that contain overlapping allegations of both dangerous premises conditions and defective equipment, we note that as a general principle of tort law, there may be more than one cause of an occurrence, with injury attributable to two or more tortfeasors* * *
We find that when an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards. Defendants moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 and common-law negligence must examine the plaintiff's complaint and bill of particulars to identify the theory or theories of liability, in order to properly direct proof to premises issues, or means and methods issues, or both, as may be indicated on a case-by-case basis. The property owner is entitled to summary judgment only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard.
(Reyes v. Arco Wentworth Management Corporation, supra at 51 [Emphasis Added] ).
As such, this Court will address each claim separately and in turn.
Defective and Dangerous Premises Condition:
(as against both JP Hunter and Avalon Bay)
In this case, JP Hunter has failed to establish its prima facie entitlement to judgment as a mater of law. Indeed, the evidence establishes that not only was JP Hunter the owner of the subject insulation hose, but also that it was JP Hunter who designated where the hose would be placed in the apartment. The evidence also confirms that the configuration of the insulation hose required the workers, including the Plaintiff and his employer Greg Lamagna, to regularly travel over and across the insulation hose. Given the foregoing, this Court finds that there remain issues of fact as to whether JP Hunter was not only aware of the defective and dangerous condition but also created the defect (Eversfield v. Brush Hollow Realty, LLC, 91 AD3d 814 [2d Dept.2012] ; Hernandez v. Argo Corp ., 95 AD3d 782 [1st Dept.2012] ).
Accordingly, the branch of the Defendant, JP Hunter's motion for summary judgment dismissal of the Plaintiff's Labor Law § 200 and common law negligence claims (which theories are based only upon dangerous/defective condition premises condition) is DENIED, without regard to the Plaintiffs' opposing proof (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985] ).
The Defendant, Avalon Bay, (owner and general contractor) on the other hand has established its prima facie entitlement to judgment as a matter of law dismissing the common law negligence and Labor Law § 200 claims. Specifically, while it has demonstrated that it neither created the allegedly dangerous condition nor had actual or constructive notice of same (Sanders v. St. Vincent Hospital, 95 AD3d 1195 [2d Dept.2012] ; Reilly–Geiger v. Dougherty, 85 AD3d 1000 [2d Dept.2011] ), it has failed to establish that it did not have control over the area. Liability based on a dangerous/defective premises condition, however, requires a demonstration of both control over the work site and either creation of or actual or constructive notice of the dangerous condition (Harsch v. City of New York, supra at 782–783). Having failed to demonstrate both prerequisites, the Defendant has established its prima facie entitlement to judgment as a matter of law.
In opposition, the Plaintiff has failed to submit any admissible evidence sufficient to raise an issue of fact as to Avalon Bay's creation of the dangerous/defective condition or its notice (actual or constructive) of the alleged dangerous/defective premises condition, i.e., the existence and placement of the insulation pipe. The Plaintiff's argument that Avalon Bay representatives knew of the dangerous/defective condition is meritless given that they fail to show, with any admissible proof, that this alleged knowledge and/or control was anything other than general supervisory control which, as stated above, is insufficient to sustain Labor Law § 200 claim based on dangerous/defective premises condition.
Accordingly, the branch of the Defendant, Avalon Bay's motion for summary judgment dismissal of the Plaintiff's Labor Law § 200 and common law negligence claims based upon a dangerous/defective premises condition, is GRANTED.
Means and Methods of Work:
(As against Avalon Bay)
The Defendant, Avalon Bay, has also established its prima facie entitlement to summary judgment as a matter of law on the Plaintiff's Labor Law § 200 and common law negligence claims insofar as they are based on the Defendant's alleged failure to control the means and methods of the Plaintiff's work.
Avalon Bay has demonstrated that apart from having general control over the project as a whole, and retaining a general power to stop any unsafe work practices, it neither knew of the specific unsafe work practice that allegedly led to the Plaintiff's accident, nor did it have specific supervisory control over the alleged unsafe work practice (DeLiso v. State of New York, supra).
In opposition, however, the Plaintiff fails to present any admissible proof raising an issue of fact. The Plaintiff's argument that as Avalon Bay's representative, Ciro Tudisco was physically present in the apartment where the Plaintiff's accident occurred on the morning of the accident (Aff. In Opp. to Avalon, ¶¶ 67–68), the Defendant should be held liable under Labor Law § 200 and principles of common law negligence. Counsel for the Plaintiffs also submit as follows:
Moreover, and although no affidavits have been introduced in support of the instant motion, the deposition witnesses produced by the moving defendant Avalon establish both that said moving defendant had the authority to supervise and control the performance of the work on the date in question as well as the requisite responsibility for the manner in which work was being performed thereat by both the co-defendant Hunter as well as plaintiff's employer (Aff In Opp. ¶ 70).
This is wholly insufficient to hold the Defendant, Avalon Bay, liable under Labor Law § 200 and common law negligence principles. That an owner or general contractor exercises general control over the project as a whole does not of itself constitute the kind of close supervision that will render such a defendant responsible for the contractor's work methods (Phillip v. 525 East 80th Street Condominium, supra at 579–580; McKee v. Great Atlantic & Pacific Tea Company, supra).
In light of the foregoing, the Plaintiffs' Labor Law § 200 and common law negligence claims as against Avalon Bay, either under a defective/dangerous premises condition or a means/methods of work theories, are DISMISSED in their entirety.
Contractual Indemnification:
(PC Richard & Son)
Finally, the Third–Party Defendant, PC Richard & Son's motion for summary judgment dismissal of Avalon Bay's third party complaint seeking, inter alia, contractual indemnification is GRANTED.
In support of its motion, the Defendant, PC Richard & Son, relies upon a “contract” it apparently entered into with Avalon Bay which apparently contains an indemnification provision wherein PC Richard apparently agreed to, inter alia, defend, indemnify and hold Avalon Bay harmless from all losses sustained by Avalon Bay. Specifically, counsel for movant, PC Richard & Son, states in her moving affirmation as follows:
21. Avalon Bay entered into a contract with P.C. Richard for the purchase, delivery and installation of appliances for the complex. A copy of the contract is annexed hereto as Exhibit “R”.
Notably, the Defendant's Exhibit “R” is a three page document entitled “Purchase Order.” Nowhere on said document, however, does it identify the “Seller” in any capacity. Indeed, there is not even any signature lines of the alleged parties herein on the document establishing that it is a valid and binding contract in the first place.
Movant's papers did not originally append an Exhibit “R.” Counsel for PC Richard & Son produced the Exhibit only upon request of Chambers. Said Exhibit consisted of only three pages entitled “Purchase Order Terms & Conditions.”
Indeed, this distinction is particularly important in this case as there is sworn testimony establishing that P.C. Richard subcontracted delivery and installation work to non-party, Lipari Trucking and that Lipari Trucking, in turn, subcontracted the work to other entities including the Plaintiff's employer, Lamagna Trucking. Notably, the movant also fails to furnish a copy of the alleged subcontracts for this Court's consideration.
Nonetheless, to the extent that it remains undisputed by and between the parties that the purchase order relied upon by PC Richard & Son, was indeed the valid and binding agreement entered into between the parties, this Court finds that the “Indemnification” provision contained therein is inapplicable to the facts at hand.
The “Indemnification” provision in the Purchase Order states as follows:
11.INDEMNIFICATION—Seller [PC Richard & Son] shall defend, indemnify and hold Buyer [Avalon Bay] harmless from all loss, damage and expenses sustained by Buyer and from all claims, liability and expense suffered by it by reason of any property damage including loss of use hereof, infringement of rights (including patent and trademark rights) personal injury or other claim or action brought by any other person, firm or corporation that results from the purchase, sale or use of any of the goods, products or services referred to in this order. This indemnity applies regardless of any active and/or passive negligent act or omission of Buyer or its agents or employees. Seller, however, shall not be obligated under this Purchase Order to indemnify Buyer for the sole negligence or willful conduct of Buyer or its agents or employees. The indemnity set forth in this paragraph shall not be limited by the insurance requirements set forth in Paragraph 13. Seller shall be liable for the loss or damage to Buyers' property while such property is in the possession of the Seller.
Given the foregoing language of the indemnification provision providing that PC Richard would indemnify Avalon Bay from any claim arising from the purchase, sale or use of goods, products or services referred to in the order, Avalon Bay's claim for contractual indemnification is herewith DISMISSED. When read in it its entirety, it is clear that the indemnification clause is only intended to provide Avalon Bay with indemnification for claims arising from the purchase, sale or use of any appliance supplied under the purchase agreement. The incident that allegedly resulted in the Plaintiff's injuries did not arise from the purchase, sale or use of PC Richard's washing machine. Rather the incident occurred when the appliance was being moved within an Avalon Bay apartment. Thus, since the alleged injury was unrelated to the operation of the washing machine, this Court finds it beyond the scope of the parties' indemnification clause (see Toledo v. Long Island Jewish Medical Center, 309 A.D.2d 921 [2d Dept.2003] ; Castelli v. KDI, Atl. Foods, 281 A.D.2d 505 [2d Dept.2001] ). Therefore, said third party claim is herewith DISMISSED.
Common Law Indemnification and Contribution:
(PC Richard & Son)
The Third–Party Defendant, PC Richard & Son's motion for summary judgment dismissal of Avalon Bay's common law indemnification and contribution claims is also GRANTED.
To establish a claim for common law indemnification, the party “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* * * ” (Correia v. Professional Data Management, Inc., 259 A.D.2d 60, 65 [1st Dept.1999] ; see also Mikelatos v. Theofilaktidis, 105 AD3d 822, 824 [2d Dept.2013] ).
Here, the Third–Party Defendant, PC Richard, maintains that it cannot be held liable under Labor Law § 200 and the common law because it had no authority to supervise or control the premises in which the Plaintiff was injured, it had no presence at Avalon Bay at any time, and it did not place the insulation hose at the apartment. It submits that in the absence of any finding of negligence on it's part, Avalon Bay cannot be held liable under a theory of common law negligence or Labor Law § 200 and is also therefore not entitled to common law indemnification or contribution (see e.g, Ramirez v. Metropolitan Transp. Auth., 106 AD3d 799 [2d Dept.2013] ; Kraut v. City of New York, 85 AD3d 979 [2d Dept.2011] ). This Court agrees.
In this case, whether Avalon Bay can prove that it is not guilty of negligence is not dispositive on PC Richard's right to summary judgment on the common law negligence claim. Here, the Third–Party Defendant, PC Richard & Son, has established that it cannot be held liable under a common law negligence theory.
In opposition, the Third–Party Plaintiff, Avalon Bay, fails to offer any proof or advance any arguments sufficient to raise an issue of fact as to the negligence of PC Richard & Son. Therefore, PC Richard & Son's motion for summary judgment dismissal of Avalon Bay's common law indemnification and contribution claims is herewith GRANTED. Said claims are DISMISSED.
Accordingly, the motion (Mot.Seq.04) of the Third–Party Defendant, PC Richard & Son, is GRANTED in its entirety.
The parties' remaining contentions have been considered and do not warrant discussion.
All applications not specifically addressed are herewith denied.
This decision constitutes the decision and order of the court.