Opinion
Index No. 515311/2016 Motions Sequence Nos. 13 14 15
07-14-2022
LAZARO HERNANDEZ DOMINGUEZ, Plaintiff, v. SILVERSHORE PROPERTIES 96 LLC, BARMADON MANAGEMENT LLC, BARMADON MANAGEMENT 2 LLC and BOLT CONSTRUCTION CORP., Defendants. BOLT CONSTRUCTION CORP., Third-Party Plaintiff v. A&D IRON WORKS INC.. Third-Party Defendant. SILVERSHORH PROPERTIES 96 LLC, Second Third-Party Plaintiff. v. A&D IRON WORKS INC. Second Third-Party Defendant.
Unpublished Opinion
DECISION AND ORDER
CARL J. LANDICINO, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered (NYSCEE)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed.....295-316, 317-342, 345-364, Opposing Affirmations)...............385-388, 389-392, 394, 395-418, 421-425, 427-431,433-436, 437-460, 463-466, Reply Affidavits (Affirmations) 467, 468, 469, Memorandum of Law................ 343, 393, 419, 426, 432, 461, After a review of the papers and oral argument, the Court finds as follows:
Plaintiff Lazaro Hernandez Dominguez (hereinafter the "Plaintiff') alleges causes of action pursuant to New York State Labor Law §§200, 240(1), and 241(6) and common law negligence as against Defendants Silvershore Properties 96 LLC ("Silvershore"), Barmadon Management, LLC and Barmadon Management 2, LLC (collectively "Barmadon") and Bolt Construction Corp, (hereinafter "Bolt"). The Plaintiff alleges in his Verified Bill of Particulars that on May 27, 2016, while employed by Third Party Defendant/Second Third Party Defendant A&D Iron Works Inc. (hereinafter referred to as "A&D") and working on a project at 1731 Pitkin Avenue, Brooklyn, NY (hereinafter the "Premises" or "Project"), the Plaintiff suffered personal injuries when the cellar door covered by plywood that his ladder had been resting on fell into the cellar and he fell down the cellar steps.
Defendant/Third Party Plaintiff Bolt now moves (motion sequence #13) for an order pursuant to 3212 for summary judgment dismissing the Plaintiffs common law negligence, Labor Law 200, 240(1) and 241(6) claims. Bolt wras the general contractor on the Project and contends that its motion should be granted as to the common law negligence and Labor Law 200 claims given that Bolt had no actual or constructive notice of the conditions at issue and did not supervise or control the Plaintiffs work. Bolt also argues that the Plaintiffs Labor Law 240(1) claim should be dismissed as the Plaintiffs injury was not caused by a gravity related risk. In addition, Bolt contends that the Plaintiffs Labor Law 241(6) claim should be dismissed as the code violations alleged by the Plaintiff are either insufficiently specific or inapplicable to the facts of this case. Bolt also seeks summary judgment on its claims for indemnification and contribution as against A&D and dismissal of claims for indemnification and contribution made by Silvershore Properties.
The Plaintiff in his opposition withdraws his Labor Law 241(6) claims under Industrial Code §§ 23-1.7(a),(c)-(h), 23-1.15, 23-1.16; 23-1.17; 23-1.19; 23-1.21 .Therefore the Defendants' motions in relation to these Industrial Code provisions arc granted, and this decision will only address remaining Industrial Code provision 23-1.7(b)(1).
The Plaintiff, A&D and Silvershore oppose the motion. The Plaintiff contends that the motion by Bolt should be denied as Bolt was the general contractor for the Project and as a result is responsible for the Plaintiff s injuries. Specifically, the Plaintiff argues that Bolt was responsible for supervising the Project and had the authority to stop work and make necessary' changes to work activity. The Plaintiff also opposes the motion by Bolt arguing that it was a Bolt employee that placed the plywood on top of the sidewalk cellar opening. The Plaintiff argues that his injuries were in part caused by Bolt's failure to secure the plywood covering, which caused the ladder to slip, resulting in the Plaintiff falling down the cellar steps. As it relates to his Labor Law 241(6) claim, the Plaintiff argues that Bolt's motion should be denied as there is at least an issue of fact regarding whether Bolt violated Industrial Code § 23-1.7(b) by failing to properly guard or cover the cellar door. A&D contends that Bolt's application for summary judgment as it relates to Bolt's third party complaint against it should be denied as there are issues of fact regarding whether the Plaintiff suffered a grave injury and as a result A&D contends that the motion relating to that issue is premature. Silvershore also opposes Bolt's motion as it relates to any cross-claims by and against Silvershore. Silvershore argues that Boll was the general contractor on this Project and contends that any liability that could be assigned to Silvershore is vicarious and the result of Bolt's negligence.
Defendant/Second Third Party Plaintiff Silvershore also moves (motion sequence #14) for an order pursuant to 3212 for summary judgment dismissing the Plaintiffs common law negligence and Labor Law 200. 240(1) and 241(6) claims. As to the Plaintiffs common law negligence and Labor Law' 200 claims. Silvershore argues that these claims should be dismissed as against it since, although they w;ere the owners of the Premises, Silvershore did not supervise or control the Project and did not have actual or constructive notice that there was any defective condition related to the area where the Plaintiff was working. Silvershore argues that summary judgment should be granted dismissing the Plaintiff s Labor Law 240(1) claim as Silvershore did not provide the Plaintiff with the ladder he used, there was no indication that the ladder was defective, and the Plaintiff has not adequately shown that there was a need for any other safety device. Silvershore also argues that the Plaintiffs claim related to Labor Law 241(6) should be dismissed as there is no indication that any of the Industrial Code violations alleged are applicable or have been violated. Specifically, Silvershore contends that there was no violation of Industrial Code Section 23-1.7(b) as the plywood covering the cellar was properly secured, Finally, Silvershore argues that summary judgment on its cross-claims against Bolt for contribution and common law indemnification and/or its third-party claims against A&D for contribution and common law indemnification, should be granted as Bolt and A&D were responsible for supervising the Project.
The Plaintiff, Bolt and A&D oppose the motion by Silvershore. As to the Plaintiffs common law negligence and Labor Law 200 claim, the Plaintiff argues that there are issues of fact regarding whether Silvershore had actual or constructive notice of the plywood covering and whether work would be conducted on it. The Plaintiff also argues that the motion by Silvershore should be denied as to the Plaintiff s Labor Law 240(1) claim given that the ladder was not secured, the ladder was placed on top of the plywood covering and the plywood cover was not properly secured. As to the Plaintiff s Labor Law 241(6) claim, the Plaintiff argues that there arc issues of fact relating to the violation of Industrial Code § 23-1.7(b) in that the plywood covering was not properly secured. Bolt also opposes the motion by Silvershore as it relates to Silvershore's application for summary judgment on its cross-claims for common law indemnification and argues that Bolt was not negligent but that it was plaintiff who was negligent and the sole proximate cause of the accident. Finally. A&D opposes the application by Silvershore for summary judgment on its common law indemnification claim. A&D argues that there was no express agreement between Silvershore and A&D and there are questions of fact remaining in relation to whether the Plaintiff sustained a grave injury which is required to overcome the bar to sue pursuant to the Worker's Compensation Law.
The Plaintiff also moves (motion sequence #15) for an order pursuant to CPLR 3212 granting the Plaintiff summary judgment against the Defendants Silvershore and Bolt with respect to the issue of liability in relation to alleged violations of § 240(1) of the Labor Law. More specifically, the Plaintiff contends that the Defendants are liable under Labor Law 240(1) given that the Plaintiff was injured while employed as a construction worker at the Premises and fell from a ladder that slipped, causing him to fall through the cellar door that had been improperly covered with plywood. The Plaintiff argues that the ladder that Plaintiff was using did not properly protect him for the task at hand, as required by Labor Law 240(1).
Both Bolt and Silvershore oppose the Plaintiffs motion. Bolt contends that the Plaintiffs motion should be denied and argues that the Plaintiff was the sole proximate cause of his alleged accident. Bolt argues that it did not provide the Plaintiff with the ladder and did not provide him with instructions on where to place the ladder or how to conduct his work. Additionally. Bolt argues that while it did install the plywood covering to the cellar door, it had secured the plywood covering with nails and the covering was stable. Silvershore argues that the Plaintiffs motion should be denied as the Plaintiff has failed to show other that: 1) there was a foreseeable need to use safety devices other than the ladder provided to the Plaintiff or 2) the ladder was defective or improperly placed in violation of the statute.
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact."' Kolivas v. Kirchoff, 14 A.D.3d 493 [2nd Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131,320 N.E.2d 853 [ 1974]. The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70. 74 [2nd Dept. 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851. 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, ""the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action," Garnham & Han Real Estate Brokers v. Oppenheimer, 148 A.D.2d 493 [2nd Dept. 1989], Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2nd Dept, 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559. 610 N.Y.S.2d 50 [2nd Dept, 1994].
Labor Law § 200"Labor Law section §200 "is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site." Rizzuto v. L.A. Wenger Contracting Co.. 91 N.Y.2d 343. 352. 693 N.E.2d 1068, 1073 [1998], "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed." Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323, 329 (2d Dept 2008]. "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed at a work site, an owner or manager of real property must have authority to exercise supervision and control over the work at the site." Banscher v. Actus Lend Lease, LLC, 132 A.D.3d 707, 709, 17 N.Y.S.3d 774, 776 [2d Dept 2015], quoting Gallello v. MARJ Distributors, Inc., 50 A.D.3d 734, 736, 855 N.Y.S.2d 602, 605 [2d Dept 2008], "When a premises condition is at issue, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice." Chowdhury v. Rodriguez, 57 A.D.3d 121. 128, 867 N.Y.S.2d 123, 129 [2d Dept 2008].
Turning to the merits of Bolt's motion (motion sequence #13), the Court finds that Bolt has not met its prima facie burden regarding the Plaintiffs common law negligence and Labor Law §200 claims. The Plaintiff claims that his injuries were the result of both an inadequate safety device, namely a faulty ladder, and a defective plywood covering of the cellar door. "[W]hen 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." Reyes v. Arco Wentworth Mgmt. Corp., 83 A.D.3d 47, 52, 919 N.Y.S.2d 44, 48 [2d Dept 2011 ]. The Plaintiffs injuries were alleged to have been caused by the plywood covering of the cellar door. As such. Bolt must show not only that it did not supervise the Plaintiffs work, but also that it did not have actual or constructive notice of the defect. See Ortega v. Puccia, 57 A.D.3d 54, 56, 866 N.Y.S.2d 323, 326 [2d Dept 2008]. Bolt relies primarily on the Plaintiffs deposition, the deposition of Alexander Eliezer Gluck, one of the principals of Bolt, and the affidavit of Allen Craig, a carpenter for Bolt. When asked if he spoke to anyone at the job site other than his co-worker, the Plaintiff answered "[n]o." When asked whether he received tools or equipment from anyone other than his employer he also stated "[n]o." (See Bolt Motion, Exhibit H, Page 63). This testimony supports the argument made by Bolt that "[a]lthough the defendant assumed some general supervisory' duties over the project, those duties did not rise to the level of supervision or control necessary' to hold it liable under Labor Law § 200 for the plaintiff's injuries." Braun v. Fischbach & Moore, Inc., 280 A.D.2d 506. 507, 721 N.Y.S.2d 79, 81 [2d Dept 2001], However. Bolt having acknowledged that it provided the plywood covering, has not met its burden regarding whether it created or had actual or constructive notice of the defect alleged. The Plaintiff contends that in order to perform his work, he had to place two of the ladder's feet on the plywood. When asked why the ladder was set on the plywood, the Plaintiff stated “[t]here was no other choice, that was the way. that was the only way to reach the plate, the screw." (See Bolt's motion, Exhibit H, Page 132). When asked when he first felt the plywood move, the Plaintiff stated "[w]ell. I did not notice the plywood, but 1 noticed that the ladder went down to the hole." (See Bolt's motion. Exhibit H, Page 84). Bolt carpenter Allen Craig states in his affidavit that "[b]efore the alleged incident occurred. I personally nailed down 3/4 inch plywood over the cellar opening." He also stated that "[t]he only way to remove the secured plywood was to remove it by using tools, such as a hammer or a crowbar." When asked when the plywood was removed from the cellar door. Mr. Gluck testified that "[t]hat was done during the demolition of the - of the -- whole sidewalk vault area." (See Bolt Motion, Exhibit L. Page 69). When asked if he had ever inspected the plywood Mr. Gluck stated "I don't think so. No." Moreover, Bolt failed to provide any testimony regarding when or whether that plywood had been inspected prior to the Plaintiffs accident. Without evidence regarding when that plywood door was inspected prior to the incident, Bolt "is unable to demonstrate prima facie that it lacked constructive notice, and thus cannot eliminate a material question of fact in that regard." Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 149, 908 N.Y.S.2d 117. 121 [2d Dept 2010].
Similarly, turning to the merits of the motion (motion sequence #14) made by Silvershore, the Court finds that Silvershore has also not met its prima facie burden regarding the Plaintiff's common law negligence and Labor Law §200 claims. Silvershore argues that as the owner of the Premises it contracted with Bolt to act as a general contractor, and it was not involved in supervising the Plaintiff s work and it did not have actual or constructive notice of the condition at issue. In support of its application. Silvershore relies primarily on the deposition testimony of the Plaintiff, the deposition of David Shorenstein, the deposition of Mr. Gluck, and the deposition of Angelo Dellegrazie, the President of A&D. Of particular significance, as part of his deposition testimony. David Shorenstein, one of two principals of Silvershore, when asked if he was even aware that there was a plywood covering of the cellar, responded "[n]o." (See Silvershore Motion, Exhibit P, Page 69). Accordingly, "Silvershore failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the plaintiffs Labor Law § 200 and common-law negligence causes of action since they failed to demonstrate a lack of actual or constructive notice of the dangerous condition alleged." Modugno v. Bovis Lend Lease Interiors, Inc., 184 A.D.3d 820, 823, 124 N.Y.S3d 557, 559 [2d Dept 2020].
Given that neither Bolt nor Silvershore met their "prima facie entitlement to judgment as a matter of law dismissing the common-law negligence and Labor Law § 200 causes of action insofar as asserted against [them], we need not determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact." Hamm v. Rev. Assocs., LLC. 202 A.D.3d 934, 939-40 [2d Dept 2022].
Labor Law §240(1)Labor Law § 240 (1) is designed to protect employees on construction sites from elevation-related risks. This section provides that:
"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 cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, 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."
Labor Law § 240 (1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly (lowing from the application of the force of gravity to an object or person." Ross v. Curtis Palmer Hydro Elec. Co., 81 N.Y.2d 494, 501 [19931. Thus, the purpose of Labor Law; § 240 (1) is "to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials." Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see also Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 [19911. Also, the duty to provide "proper protection" against elevation-related risks is nondelegable; therefore, owners and contractors are liable for the violations of their agents even if the owners or contractors have not exercised supervision and control over the subject work or the injured worker. Rocovich, 78 N.Y.2d at 513. This statute "is to be construed as liberally as may be" to protect workers from injury. Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513. 520-521 [1985], quoting Quigley v. Thatcher, 207 NY 66. 68 [1912]: see also Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. 18 N.Y.3d 1, 7 [2011].
Turning to the merits of the Plaintiffs motion (motion sequence #15), the Court finds that the Plaintiff has met his prima facie burden as it relates to his Labor Law 240(1) claim against Bolt and Silvershore. The Plaintiff argues that summary judgment should be granted on his Labor Law 240(1) claim as the ladder that was provided was inadequate for the task at hand, the ladder was not properly placed, and the plywood, which was admittedly placed by Bolt, upon which the ladder was placed, was not properly secured. In support of his position, the Plaintiff relies on his own deposition, the deposition of David Shorenstein, the deposition of Mr. Gluck, and the deposition of Angelo Dellegrazie, the President of A&D. When asked whether his co-worker Mr. Rosario had placed the ladder into its position, the Plaintiff answered "[y]es." When asked if it was a fiberglass A-frame ladder, the Plaintiff answered "[y]es." The Plaintiff stated that the accident occurred when "I moved one of my feet up. that is when the ladder - 1 felt the ladder moving." The Plaintiff further stated that "when the plywood moved and [sic] the ladder went down." The Plaintiff further stated that "I don't know if all of the legs went in, but when I saw the two legs were moving, sliding, and that's when the ladder tilt and I went down facedown." (Sec Plaintiff's Motion, Exhibit I, Pages 77-84).
There is no dispute that Silvershore and Bolt are, respectively, the owner and contractor. Therefore, Silvershore and Bolt are subject to absolute vicarious liability for violations of these provisions without regard to fault. See generally Alfonso v. Pacific Classon Realty, LLC, 101 A.D.3d 768, 770 [2d Dept 2012] [vicarious liability provision of Labor Law § 240 (1) applies to owners, contractors, and their agents]; Zimmer v. Chemung County Performing Arts. Inc., 65 N.Y.2d 513,521 [1985] [owner or contractor is liable for Labor Law § 240 (1) violation "without regard to ... care or lack of it"[. Also, since the Plaintiff was caused to fall down the cellar steps after the plywood gave way. he was exposed to an elevation-related hazard. See eg. Zong Mou Zou v. Hai Ming Constr. Corp., 74 A.D.3d 800. 801 [2d Dept 2010] [worker injured when sheet metal decking collapsed underneath him causing him to fall 10 to 13 feet to the basement established Labor Law § 240(1) violation]. Therefore. Labor Law § 240(1) applies here. See Hovorka v. Applied Prod. Co., Inc., 199 A.D.3d 520. 154 N.Y.S.3d 435 [2d Dept 2021]; Klein v. City of New York, 222 A.D.2d 351, 352, 635 N.Y.S.2d 634 [1st Dept 1995], aff'd, 89 N.Y.2d 833, 675 N.E.2d 458 [1996].
In opposition, both Bolt and Silvershore have failed to raise a triable issue of fact regarding the Plaintiffs Labor Law 240(1) claim. In opposition, both Bolt and Silvershore contend that the plywood cellar cover was secure, and the ladder was without defect. As such, they contend that, the Plaintiff was the sole proximate cause of the accident. Silvershore and Bolt's argument that the placement of the ladder suggests that the Plaintiff was the sole proximate cause of the accident "did not raise a triable issue of fact as to whether the plaintiffs conduct was the sole proximate cause of the accident." Grant v. City of New York. 109 A.D.3d 961. 962-63, 972 N.Y.S.2d 86, 88 [2d Dept 2013]. Accordingly, neither Bolt nor Silvershore were able to raise a material issue of fact regarding the Plaintiffs Labor Law 240(1) claim. Parr v. 157 5 Ave., LLC. 60 A.D.3d 796, 797. 875 N.Y.S.2d 228. 229 [2d Dept 2009].
Labor Law §241(6)Labor Law §241(6) imposes on owners and contractors a non-delegable duty "to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed." Perez v 286 Scholes St. Corp., 134 A.D.3d 1085, 1086 [2nd Dept, 2015]; Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982. 983 [2"d Dept. 2014]. To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision mandating compliance with concrete, or clear, specifications. See Misicki v. Caradonna, 12 N.Y.3d 511.515 [2009]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 [1993]; La Veglia v St. Francis Hosp., 78 A.D.3d 1123 [2nd Dept. 2010]; Pereira v. Quogue Field Club of Quogue, Long Is., 71 A.D.3d 1104 [2nd Dept, 2010].
Both Bolt and Silvershore seek to have the Plaintiff s Labor Law 241(6) claim dismissed. As stated above, the Plaintiff has withdrawn his §241(6) claims except in relation to Industrial Code Section 23-1.7(b)(1). Industrial Code Section 23-1.7(b)(I) provides in pertinent part that: "[e]very hazardous opening into which a person may step, or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule)." Both Bolt and Silvershore argue that Industrial Code Section 23-1.7(b)(1) was not violated as the cellar door opening was covered and secured by plywood and nails. However, as stated above, the Plaintiff s testimony regarding the failure of the plywood covering, creates an issue of fact regarding whether Industrial Code Section 23-1.7(b)(1) was violated. See Guaman v. 178 Ct. St., LLC, 200 A.D.3d 655, 159 N.Y.S.3d 454, 457 [2d Dept 2021].
Indemnification and Contribution
Bolt seeks as part of its motion (motion sequence #13), summary judgment on its claims for common law indemnification and contribution against A &D, as well as summary judgment dismissing any and all similar cross-claims and counterclaims against it brought by Silvershore and A&D. Bolt argues that although Bolt and Silvershore entered into a contract, that contract did not contain an indemnification provision. Bolt also contends that any cross-claims for indemnification by Silvershore should be denied as Bolt did not supervise or control the work of the Plaintiff, an A&D employee. Bolt further maintains that it did not breach the contract with Silvershore given that it procured the required insurance coverage. Bolt also argues that ills entitled to common law indemnification from A&D given that the Plaintiff suffered a grave injury as defined by the Workers Compensation Law.
Silvershore, as part of its motion (motion sequence #14), seeks summary judgment on its claims for contribution and common law indemnification against Bolt and A&D. Silvershore argues that its crossclaims for contribution and common law indemnification as against Bolt should be granted as Silvershore was not present during the performance of the work and delegated all supervisory authority to Bolt, the general contractor. Silvershore also argues, in the alternative, that it is entitled to summary judgment on its impleader claims for contribution and common law indemnification as against A&D given that, as stated above, the Plaintiff purportedly suffered a grave injury defined by the Workers Compensation Law.
As an initial matter, and as it relates to its cross-claims and third party claims against A&D, the Court finds that there are issues of fact regarding whether A&D is subject to such claims pursuant to Workers Compensation Law §11. "Absent an express indemnification agreement, or a 'grave injury' as enumerated in Workers' Compensation Law 11, an employer's liability for and employee's on-the-job injury is ordinarily limited to workers' compensation benefits." Fleming v. Graham, 10 N.Y.3d 296. 299. 886 N.E.2d 769. 772 [2008]. "Under Workers' Compensation Law § 11. the definition of 'grave injury' includes 'an acquired injury to the brain caused by an external physical force resulting in permanent total disability.' meaning, the injured worker is no longer employable "in any capacity." Alulema v. ZEE Elec. Corp., 168 A.D.3d 469, 470, 90 N.Y.S.Sd 171. 172 [2d Dept 2019], quoting Rubeis v. Aqua Club Inc., 3 N.Y.3d 408. 416. 821 N.E.2d 5.30. 534 [2004].
Pursuant to Workers' Compensation Law § 11 a "grave injury" shall mean "only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to (he brain caused by an external physical force resulting in permanent total disability.” N.Y. Workers' comp. Law § 11.
The Plaintiff has alleged in his Verified Bill of Particulars and his Supplemental Bill of Particulars that he has suffered a traumatic brain injury. However, A&D. who did not otherwise move for summary' judgment, provides affirmed reports from Drs. Adam N. Bender and David M. Erlanger, who both found that the Plaintiff did not suffer a traumatic brain injury. Dr. Bender opines that "[t]he claimant's neurological examination is characterized by evidence of symptom exaggeration, as detailed above, but is objectively normal with no objective evidence of any neurological problem that would explain his ongoing subjective complaints." (See A&D Affirmation in Opposition, Exhibit "A", Doc. 435). Dr. Erlanger stated that the Plaintiff "appeared to exaggerate cognitive, somatic, and affective symptoms, and may have done so at prior evaluations." (See A&D Affirmation in Opposition. Exhibit "B", Doc. 435). At this juncture, an issue of fact remains as to whether the Plaintiffs injury constitutes a "permanent total disability" sufficient to satisfy the requirements set forth by the Workers' Compensation Law. Accordingly, the applications by Bolt and Silvershore in relation to common law indemnification and contribution as against A&D is denied.
As it relates to Silvershore's cross-claims as against Bolt for contribution and common law' indemnification, the Court finds that there are issues of fact regarding whether Silvershore was negligent. In the instant proceeding, Silvershore's potential liability is not solely vicarious or statutory as Silvershore may be found liable for premises liability as a consequence of actual or constructive notice of the condition of the cellar door in relation to the Plaintiff s common law negligence and Labor Law 200 claims. "In order to establish their claim for common-law' indemnification, the [moving] defendants were required to prove not only that they were not negligent, but also that the proposed indemnitor, [the contractor or subcontractor], was responsible for negligence that contributed to the accident or, in the absence of any negligence, that it had the authority to direct, supervise, and control the work giving rise to the injury." Poalacin v. Mall Properties, Inc., 155 A.D.3d 900, 909, 64 N.Y.S.3d 310, 319 [2d Dept 2017]. In the instant matter, Silvershore has failed to show that it is free from comparative fault as a matter of law. As a result, its application for common law indemnification and contribution is denied and any such claims will be addressed at trial.
Similarly, Bolt's application to dismiss Silvershore's cross-claims for contribution and indemnification are denied. Bolt failed to establish its prima facie burden that "it was not negligent, and that it did not have the authority to direct, supervise, or control the work giving rise to the injury'." Nugra v. Aramalla, 191 A.D.3d 683, 142 N.Y.S.3d 70, 73 [2d Dept 2021].
Based upon the foregoing, it is hereby Ordered that:
Bolt's motion (motion sequence #13) is granted solely to the extent that it relates to that aspect of the Plaintiffs Labor Law 241(6) claims based upon Industrial Code provisions other than 12 NYCRR 23-1.7(b)(1). All other relief sought is denied.
Silvershore's motion (motion sequence #14) is granted solely to the extent that it relates to that aspect of the Plaintiffs Labor Law 241(6) claims based upon Industrial Code provisions other than 12 NYCRR 23-1.7(b)(1). All other relief sought is denied.
The Plaintiffs motion (motion sequence #15) is granted solely to the extent that it is awarded summary judgment on liability as it relates to his Labor Law 240(1) claim against Defendants Bolt and Silvershore.
The foregoing constitutes the Decision and Order of the Court.