Opinion
691 Index No. 151837/16 Case No. 2022–01413
10-03-2023
William A. COON et al., Plaintiffs–Appellants–Respondents, v. WFP TOWER B CO. L.P. et al., Defendants–Respondents–Appellants. WFP Tower B Co. L.P. et al., Third–Party Plaintiffs–Respondents–Appellants, v. Allran Electric of N.Y., LLC, Third–Party Defendant–Respondent–Appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants-respondents. Cullen & Dykman, LLP, New York (Michael E. Joseph of counsel), for WFP Tower B Co. L.P., WFP Retail Co. L.P., Turner Construction Company, Time, Inc., and Security Control Integrators, respondents-appellants. Marshall Dennehey Warner Coleman & Goggin, P.C., Melville (Martin A. Schwartzberg of counsel), for Allran Electric of N.Y., LLC, respondent-appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants-respondents.
Cullen & Dykman, LLP, New York (Michael E. Joseph of counsel), for WFP Tower B Co. L.P., WFP Retail Co. L.P., Turner Construction Company, Time, Inc., and Security Control Integrators, respondents-appellants.
Marshall Dennehey Warner Coleman & Goggin, P.C., Melville (Martin A. Schwartzberg of counsel), for Allran Electric of N.Y., LLC, respondent-appellant.
Oing, J.P., Friedman, Kennedy, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered March 9, 2022, which, to the extent appealed from as limited by the briefs, (1) denied plaintiffs’ motion for partial summary judgment on the issue of liability on their Labor Law § 241(6) claim, insofar as predicated on Industrial Code (12 NYCRR) § 23–1.7(e)(1), as against defendants/third-party plaintiffs WFP Tower B Co. L.P. (Tower), WFP Retail Co. L.P. (Retail; together with Tower, WFP defendants), Time, Inc., and Turner Construction Company (Turner; collectively with defendant/third-party plaintiff Security Control Integrators, Inc., defendants), and their Labor Law § 200 and common-law negligence claims, as against Turner; (2)(a) denied so much of defendants’ separate motion as was for summary judgment dismissing, as against them, the Labor Law § 241(6) claim insofar as predicated on 12 NYCRR 23–1.7(e)(1), and, as against Turner, the Labor Law § 200 and common-law negligence claims, but (b) granted so much of the motion as was for summary judgment dismissing, as against them, the Labor Law § 241(6) claim insofar as predicated on 12 NYCRR 23–1.7(e)(2) ; (3) denied so much of defendants’ separate motion as was for summary judgment in Turner's favor on, in effect, their third-party complaint against third-party defendant Allran Electric of N.Y., LLC (Allran); and (4) denied Allran's separate motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.
Supreme Court properly identified issues of fact as to whether the WFP defendants are proper Labor Law defendants in this action. While parts of the record identify Retail and Tower as holding the leasehold estate and ground lease, respectively, for the premises, the record is not dispositive as to whether the WFP defendants’ relationship to the premises rises to the level of owner within the meaning of the Labor Law (see generally e.g. Scaparo v. Village of Ilion, 13 N.Y.3d 864, 867, 893 N.Y.S.2d 823, 921 N.E.2d 590 [2009] ).
Summary judgment was correctly denied to all parties on the Labor Law § 241(6) claim insofar as predicated on 12 NYCRR 23–1.7(e)(1), given issues of fact as to whether the area in which the accident occurred may be properly characterized as a passageway within the meaning of the regulation (see Pawlicki v. 200 Park, L.P., 199 A.D.3d 578, 579, 157 N.Y.S.3d 427 [1st Dept. 2021] ; Gallina v. MTA Capital Constr. Co., 193 A.D.3d 414, 415, 146 N.Y.S.3d 244 [1st Dept. 2021] ; Prevost v. One City Block LLC, 155 A.D.3d 531, 535, 65 N.Y.S.3d 172 [1st Dept. 2017] ). The Labor Law § 241(6) claim was also properly dismissed insofar as predicated on 12 NYCRR 23–1.7(e)(2), since the record does not support the conclusion that the injured plaintiff fell into the hole because of an accumulation of debris; rather, he fell into it because he did not see it as he pushed his cart in front of him, and the hole was uncovered (see Ali v. Sloan–Kettering Inst. for Cancer Research, 176 A.D.3d 561, 562, 112 N.Y.S.3d 14 [1st Dept. 2019] ; Colon v. Metropolitan Transp. Auth., 159 A.D.3d 450, 451, 69 N.Y.S.3d 489 [1st Dept. 2018] ; compare e.g. Sande v. Trinity Ctr. LLC, 188 A.D.3d 505, 506, 135 N.Y.S.3d 389 [1st Dept. 2020] ; Gonzalez v. G. Fazio Constr. Co., Inc. , 176 A.D.3d 610, 611, 113 N.Y.S.3d 18 [1st Dept. 2019] ).
Moreover, all parties were properly denied summary judgment on the Labor Law § 200 and common-law negligence claims as against Turner. Where, as here, liability is premised upon a dangerous premises condition, a defendant may be held liable only when it either created the dangerous condition or failed to remedy it despite having actual or constructive notice thereof (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143–144, 950 N.Y.S.2d 35 [1st Dept. 2012] ). Plaintiffs did not establish prima facie that the hole into which the injured plaintiff stepped was uncovered "for a sufficient length of time ... to permit [Turner]’s employees to discover and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Meanwhile, defendants "submitted no evidence of the cleaning schedule for the ... site [of the accident] or when the site had last been inspected before the accident" as part of their moving papers ( Pereira v. New Sch., 148 A.D.3d 410, 413, 48 N.Y.S.3d 391 [1st Dept. 2017] ; see e.g. Kolakowski v. 10839 Assoc., 185 A.D.3d 427, 427–428, 127 N.Y.S.3d 74 [1st Dept. 2020] ). To the extent that defendants may have submitted Turner's daily logs in reply to plaintiffs’ opposition to their motion, this was new evidence that could not be considered in support of defendants’ prima facie burden (see e.g. Dorset v. 285 Madison Owner LLC, 214 A.D.3d 402, 403, 185 N.Y.S.3d 61 [1st Dept. 2023] ; Benedetto v. Hyatt Corp., 203 A.D.3d 505, 507, 165 N.Y.S.3d 45 [1st Dept. 2022] ; Migdol v. City of New York, 291 A.D.2d 201, 201, 737 N.Y.S.2d 78 [1st Dept. 2002] ).
Finally, all parties were properly denied summary judgment on the third-party claims against Allran. Given issues of fact as to the scope of Allran's work on the project, as well as Turner's active negligence or freedom therefrom, issues of fact also remain as to whether Allran's duty to indemnify Turner has been triggered, either contractually or at common law (see generally Correia v. Professional Data Mgt., Inc., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept. 1999] ). Defendants did not establish Turner's prima facie entitlement to summary judgment on the breach of contract claim for failure to procure insurance, since their evidence was not in admissible form (see Benedetto, 203 A.D.3d at 506, 165 N.Y.S.3d 45 ). Allran's argument that the claim should be dismissed for lack of damages is unavailing, since it has not yet been determined whether Allran's alleged failure to procure the agreed-upon insurance caused Turner any losses ( Souare v. Port Auth. of N.Y. & N.J., 125 A.D.3d 494, 495, 4 N.Y.S.3d 173 [1st Dept. 2015] ; see Gonzalez v. DOLP 205 Props. II, LLC, 206 A.D.3d 468, 471–472, 171 N.Y.S.3d 61 [1st Dept. 2022] ; Bachrow v. Turner Constr. Corp., 46 A.D.3d 388, 388, 848 N.Y.S.2d 86 [1st Dept. 2007] ).