Opinion
No. 402886/08.
2012-01-25
July FERNANDEZ, Plaintiff, v. STOCKBRIDGE HOMES, LLC, Stratis Builders, LLC and Harc Maintenance & Contracting Corp., Defendants.
Steven I. Brizel, Esq., Raymond Schwartzberg & Associates, PLLC, New York, for plaintiff. Ralph A. Cosentino, Esq., Ahmuty, Demers & McManus, Esqs., Albertson, for defendant, Stockbridge Homes, LLC.
Steven I. Brizel, Esq., Raymond Schwartzberg & Associates, PLLC, New York, for plaintiff. Ralph A. Cosentino, Esq., Ahmuty, Demers & McManus, Esqs., Albertson, for defendant, Stockbridge Homes, LLC.
Kavid F. Kluepfel, Esq., Cascone & Kluepfel, LLP, Garden City, for defendant, Stratis Builders Attorney.
Harry H. Kutner, Jr., Esq., Mineola, for third party defendant, Sanita Attorney.
DEBRA A. JAMES, J.
Motion sequence numbers 005 and 006 are consolidated for disposition.
In Motion Sequence No. 5, defendant/second third-party plaintiff Stockbridge Homes, LLC (Stockbridge) moves, pursuant to CPLR 2221(d), for leave to reargue its cross-motion for summary judgment and, upon reargument, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against it or, in the alternative, granting it an order of indemnification from defendant Stratis Builders, LLC (Stratis) and from second third-party defendant Sanita Construction Company, Inc. (Sanita).
In Motion Sequence No. 6, Sanita moves, pursuant to CPLR 2221(e) and 3212, for leave to renew and reargue its prior cross-motions seeking summary judgment dismissing Stratis and Stockbridge's claims seeking contribution and common-law and contractual indemnity. Plaintiff July Fernandez cross-moves, pursuant to CPLR 2221(d), for leave to reargue that portion of this court's prior order, dated February 18, 2011, granting summary judgment to Stratis and dismissing his Labor Law § 241(6) cause of action. Stratis cross-moves, pursuant to CPLR 2221, for leave to reargue that portion of this court's prior order that denied Stratis' application for summary judgment dismissing plaintiff's Labor Law § 240 cause of action and, upon reargument, granting it summary judgment dismissing the complaint asserted as against it.
With respect to Motion Sequence No. 5, when the court rendered its initial decision, it did not have Stockbridge's cross-motion papers and was unaware that one had been served and filed. Therefore, although Stockbridge indicates that its motion is one for reargument, since the motion was never determined nor overlooked, that would be a misnomer. At oral argument on this motion, all parties agreed that Stockbridge had made a cross-motion to the earlier motion and since all of the parties to the action had been served, and opposition to this and the original motion has been filed, the court, in the interests of fairness, will grant Stockbridge's motion to reargue, but treat the issues raised therein as being determined for the first time.
Plaintiff was injured at a job site located at 96–108 Stockbridge Road, Yonkers, New York, on November 1, 2005. At the time of the occurrence, the property was owned by Stockbridge, which was constructing four single-family homes at the site. Stockbridge contracted directly with Sanita, plaintiff's employer, to excavate and construct the buildings. Stockbridge also entered into a contract with Stratis to do “all work necessary to erect 4 single family homes on Stockbridge Rd. and to schedule/coordinate concrete work w/ Sanita Construction.”
At the time of the accident, plaintiff was in the process of moving wooden forms that he and his co-workers had used to construct a retaining wall. According to his testimony at his examination before trial, at the time of the occurrence, plaintiff was lifting the forms from one side of the building to the other. Plaintiff stated that, while standing on top of the wall, he was using a rope to lower the form down to the ground, and the rope became dislodged from the form, causing him to fall backwards to the ground. Plaintiff also stated that there were no scaffolds on either side of the wall at the time of his accident and that he had no safety equipment such as a harness.
According to Stockbridge's contract with Sanita,
The Contractor [Sanita] shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless Contract Documents give other specific instructions concerning these matters.
The court notes that the same provision appears in Stockbridge's contract with Stratis.
In addition, Stockbridge's contracts with both Stratis and Sanita contain the following provisions:
To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner [Stockbridge], Architect, Architect's consultants, and agents and employees or any of them from and against claims, damages, losses, and expenses, including but not limited to attorneys' fees arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death or to injury or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this paragraph 3.18.1.
In claims against any person or entity indemnified under this paragraph 3.18 by an employee of the Contractor, a Subcontractor or anyone directly or indirectly employed by them or anyone for whose act they may be liable, the indemnification under this paragraph 3.18 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
In addition, the contracts also state, in paragraph 3.3.1:
The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. It also agreed to be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.
Stockbridge argues that, since the accident was the result of the means and methods of operation at the work site, and it did not exercise any supervision or control over plaintiff's activities, plaintiff's causes of action for common-law negligence and violation of Labor Law § 200 asserted as against it should be dismissed. Stockbridge also contends that plaintiff's cause of action based on a violation of Labor Law § 241(6) as asserted against it must also be dismissed because plaintiff has failed to allege a violation of any provision of the Industrial Code, which is the predicate for maintaining a claim based on Labor Law § 241(6). Stockbridge further argues that plaintiff's Labor Law § 240(1) cause of action asserted as against it must be dismissed because plaintiff did not fall from a safety device identified in Labor Law § 240(1) and because the work that he was performing was incidental to the construction work, and, therefore, cannot be brought within the scope of the statute.
In furtherance of its contention, Stockbridge has provided the testimony of James Hannigan (Hannigan), a nonparty witness who is employed by the City of Yonkers' Building Department as a building inspector, who examined the site on the day of the accident. According to Hannigan, there was an outrigger in place on the wall and there was no problem or defect with the outrigger. It is Stockbridge's position that plaintiff jumped from the wall and was the proximate cause of his own accident. In addition, should Stockbridge's motion be denied, in whole or in part, Stockbridge argues that it is entitled to an order of indemnification from Stratis and Sanita, based on the contractual provisions noted above.
In opposition to the instant motion, plaintiff maintains that a motion made pursuant to CPLR 2221(d) is inappropriate and should be summarily denied. However, should the court grant reargument, plaintiff has not opposed that portion of Stockbridge's motion seeking dismissal of his common-law negligence and Labor Law § 200 causes of action, but opposes granting Stockbridge summary judgment on his Labor Law §§ 241(6) and 240(1) claims.
Plaintiff's opposition to dismissing his cause of action based on a violation of Labor Law § 240(1) is based on the non-delegable duty imposed on a landowner under this statute when a worker falls from an elevated height at a work site. In addition, plaintiff states an intention to conduct further nonparty depositions. Moreover, plaintiff points to a police report that stated that he fell from a 30–to 35–foot wall while lifting 70–pound beams.
In opposition to Stockbridge's cross-motion, plaintiff served a supplemental bill of particulars alleging a violation of section 23–1.16 of the Industrial Code (12 NYCRR) to support the cause of action based on a violation of Labor Law § 241(6). Section 23–1.16 of the Industrial Code requires approval for safety belts, harnesses and other such devices, including instruction for their use. Hence, plaintiff claims that he has met the prerequisite for maintaining a cause of action based on a violation of section 240(1) of the Labor Law.
In opposition to that branch of Stockbridge's motion that seeks an order granting indemnification from Stratis and Sanita, Stratis argues that Stockbridge's potential liability did not “arise out of” or “result[ ] from” the performance of work under its contract. Rather, it is Stratis' contention that the accident arose out of Sanita's work, pursuant to Stockbridge's separate contract with Sanita. According to Stratis, its contract only requires it to indemnify Stockbridge if it were found to be negligent, and there is no showing that it, in any way, was responsible for plaintiff's accident.
In addition, Stratis contends that it had no involvement with plaintiff's work performance, other than to schedule concrete work with plaintiff's employer, Sanita, and it had no duty or responsibility to direct, supervise or control plaintiff's work.
In Motion Sequence No. 6, Sanita argues that the court failed to address its cross-motion that was initially submitted in opposition to Motion Sequence No. 2. As part of its exhibits, Sanita has attached a copy of its “Notice of Cross Motion,” which states, as its demanded relief:
An order pursuant to CPLR § 3212 dismissing the plaintiff's complaint in its entirety; denying plaintiff's motion to strike Sanita Construction Company, Inc.'s third party and second third-party answer in its entirety; denying defendant/second third-party plaintiff, Stockbridge Homes, LLC's motion for an order granting it contribution and indemnification from Sanita Construction Company, Inc.; as well as such other and further relief as this Court deems just, equitable and proper.
The cross-motion papers were apparently not before the court at the time the original motion was decided. However, in its current notice of motion, Sanita only seeks to renew and reargue the branch of its prior cross-motion seeking to dismiss both third-party plaintiff's claims sounding in contribution and common-law and contractual indemnity, so the court will only address those issues here.
Sanita states that, at the time of the occurrence, there was scaffolding in place with knee-high safety railings in place along the wall on which plaintiff was working. According to De La Rosa, workers were not required to stand on top of the wall at any time. Further, De La Rosa averred that the scaffolding appeared intact and that nothing was out of order when he arrived at the scene after the accident.
In addition, Rocky Stravoskufis (Stravoskufis), a machine operator for Stratis and the only witness to the accident, testified that he saw plaintiff jump, not fall, from the top of the wall. Americo Sanita (Americo), the owner of Sanita, also testified that workers were to be working on the scaffolding, not on top of the wall. It is Sanita's contention that plaintiff's injuries were proximately caused by his own actions and that, therefore, plaintiff's complaint and Stockbridge's claims for contribution and/or indemnification should be dismissed.
Sanita also avers that the claims asserted by Stockbridge as against it must be dismissed because: (1) the contractual provision violates General Obligations Law (GOL) § 5–332.1 in that it attempts to have Sanita indemnify Stockbridge for Stockbridge's own negligence; and (2) the claim is precluded by the Workers' Compensation Law § 11, because plaintiff did not suffer a “grave injury.”
In opposition to Sanita's motion, Stratis maintains that Sanita, as plaintiff's employer, could be liable for contribution and/or indemnification to the extent that Stratis' damages are attributable to Sanita's negligence. Moreover, Stratis argues that, should it be found to be a statutory agent of the owner, it would be entitled to contractual indemnification from Sanita under the terms of Sanita's contract with Stockbridge, by which Sanita agreed to indemnify Stockbridge and its agents for injuries resulting from Sanita's actions.
Stockbridge also submitted opposition papers to Sanita's motion. According to Stockbridge, the indemnification provision of the subject contract does not violate GOL because it contemplates partial indemnification under circumstances wherein Stockbridge is found only vicariously liable, and it is limited by the phrase “to the fullest extent permitted by law.”
Additionally, Stockbridge states that its claims for indemnification from Sanita are not prohibited by Workers' Compensation Law § 11 because that statute expressly states:
For purposes of this section the terms indemnity' and contribution' shall not include a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered.
Furthermore, Stockbridge says that it is entitled to common-law indemnification because its liability is only vicarious and plaintiff's injuries were caused by Sanita's own negligence.
Stratis has filed a cross-motion seeking to reargue the court's prior determination not to dismiss plaintiff's cause of action based on a violation of Labor Law § 240(1) asserted as against it. The thrust of Stratis' argument is that it neither supervised nor controlled plaintiff's work, was not the general contractor on the project and, therefore, cannot be held vicariously liable for plaintiff's injuries, pursuant to Labor Law § 240(1). It is noted that this is the same argument presented to this court previously, and the court stated that “Mr. Stratis affirmed that Stratis was acting as the general contractor for the project.”
Plaintiff has also filed a cross-motion seeking to reargue that portion of this court's prior determination that dismissed his cause of action based on an alleged violation of Labor Law § 241(6), asserting that, in support of that cause of action, he alleged a violation of Industrial Code § 23–1.16. Plaintiff maintains that the allegation of a violation of Industrial Code § 23–1.16 was before the court at the time the earlier decision was rendered.
Plaintiff states that the Industrial Code violation appeared in his supplemental bill of particulars which was served on Stockbridge and Sanita on April 2, 7, and 13, 2010. However, no such supplemental bill of particulars was attached to any of the papers presented to the court prior to the court rendering its decision on February 18, 2011. In opposition to plaintiff's cross-moion, Stratis asserts that Industrial Code § 23–1.16 is inapplicable to the case at bar because the devices covered by that section of the Industrial Code were not involved in plaintiff's accident. In reply, plaintiff argues that Industrial Code § 23–1.16 is sufficient to support his Labor Law § 241(6) claim because such devices should have been provided to him.
Lastly, Stockbridge has provided opposition to the motion and cross-motions, which, in sum and substance, reiterates all of its arguments previously noted with respect to its own initial motion and the instant motion for leave to reargue.
CPLR 2221(d)(2) permits a party to move for leave to reargue a decision of a court upon a showing that the court misapprehended the law in rendering its initial decision.
A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision. Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted.
William P. Pahl Equipment Corp. v. Kassis, 182 A.D.2d 22, 27 (1st Dept 1992) (internal citations and quotation marks omitted).
In the instant matter, the court never addressed Stockbridge's initial cross motion because it was unaware that such cross motion had been served and filed. Therefore, the court grants Stockbridge's motion to reargue, and will now address its arguments in support of its cross motion for summary judgment.
“The proponent of a summary judgment motion 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 [internal quotation marks and citation omitted].” Santiago v. Filstein, 35 AD3d 184, 185–186 (1st Dept 2006). The burden then shifts to the motion's opponent to “present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact.” Mazurek v. Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978).
Labor Law § 200 is the codification of the common-law duty to provide workers with a safe work environment, and its provisions apply to owners, contractors, and their agents. Ross v. Curtis–Palmer Hydro–Electric Company, 81 N.Y.2d 494 (1993).
There are two distinct standards applicable to Labor Law § 200 cases, depending upon whether the accident is the result of a dangerous condition, or whether the accident is the result of the means and methods used by the contractor to perform its work. See e.g. McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 41 AD3d 796 (2d Dept 2007).
In the instant matter, the accident allegedly occurred because of the means and methods of operation. In such circumstances the injured worker must produce evidence that the defendant exercised supervisory control over the injury-producing work. Comes v. New York State Electric & Gas Corp., 82 N.Y.2d 876 (1993); McFadden v. Lee, 62 AD3d 966 (2d Dept 2009).
[T]here is no evidence in the record that [the movant] actually directed, controlled or supervised plaintiff's work or was responsible for doing so. Nor was there any proof that [the movant] was on notice of any dangerous condition regarding the use of the [safety device] or that it supplied the [safety device] in question. Rather, the record shows that [the contractor] was contractually obligated to supply the necessary equipment for the ... work and it was plaintiff's employer ... that actually directed its use.
Torres v. Morse Diesel International, Inc., 14 AD3d 401, 403 (1st Dept 2005) (internal citations omitted). As in Torres there is no evidence that Stockbridge had any connection to plaintiff's work and therefore plaintiff's common-law negligence and Labor Law § 200 claims asserted as against Stockbridge shall be dismissed.
Similarly, that portion of Stockbridge's motion seeking to dismiss plaintiff's Labor Law § 241(6) cause of action asserted as against it shall be granted. Labor Law § 241(6) states:
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:
* * *
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.
To prevail on a cause of action based on Labor Law § 241(6), a plaintiff must establish a violation of an Industrial Code provision which sets forth a specific standard of conduct. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343 (1998).
Neither the complaint nor the bill of particulars alleges any violations of the Industrial Code. In the supplemental bill of particulars plaintiff asserts a violation of section 23–1.16 of the Industrial Code to support this cause of action. However, that section of the Industrial Code does not apply in situations where an injured worker was not provided with any such safety devices and is, therefore, insufficient to support this cause of action. Dzieran v.. 1800 Boston Road, LLC, 25 AD3d 336 (1st Dept 2006) (“section [ ] which set[s] standards for ..., safety belts ..., do[es] not apply because plaintiff was not provided with any such safety device[ ]”). As a consequence, the portion of Stockbridge's motion seeking to dismiss plaintiff's Labor Law § 241(6) cause of action asserted as against it shall be granted.
Section 240 (1) of the New York Labor Law states, in pertinent part:
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, 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.
As stated by the Court in Rocovich v. Consolidated Edison Company (78 N.Y.2d 509, 513 [1991] [internal quotation marks and citations omitted, emphasis in original] ),
It is settled that section 240(1) is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed. Thus, we have interpreted the section as imposing absolute liability for a breach which has proximately caused an injury.... In furtherance of this same legislative purpose of protecting workers against the known hazards of the occupation, we have determined that the duty undersection 240(1) is nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control.
At the time of the accident, plaintiff was standing on top of a 30–35 foot high wall as part of Stockbridge's construction project. Plaintiff testified that he was provided with no safety device, such as a harness, and that the cause of his fall was the tearing of the rope that he was using to move the form, thereby causing him to fall. In opposition, testimony has been presented that there was an adequate scaffold in place, that plaintiff failed to use it, and that plaintiff caused his own injuries by jumping off the wall.
Labor Law § 240(1) imposes strict liability on landowners for injuries that are the direct result of a failure to provide statutorily required protection against a risk arising from an elevation differential at a work site. Ross v. Curtis–Palmer Hydro–Electric Co., 81 N.Y.2d 494 (2009). However, testimony has been provided that leads to an inference that plaintiff may have failed to use the safety equipment provided and caused his own injuries by jumping off the wall which would be sufficient to establish a recalcitrant worker defense. Jastrzebski v. North Shore School District, 88 N.Y.2d 946 (1996); see e.g. Kumar v. Stahlunt Associates, LLC, 3 AD3d 330 (1st Dept 2004).
Conflicting testimony regarding the cause of the accident precludes the court from granting summary judgment because the question involves a determination of credibility. S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 N.Y.2d 338 (1974); Greco v. Boyce, 262 A.D.2d 734 (3d Dept 1999). Based on the foregoing, the branch of Stockbridge's motion seeking to dismiss plaintiff's cause of action asserted as against it based on a violation of Labor Law § 240(1) shall be denied.
That portion of Stockbridge's motion seeking indemnification from Stratis shall be denied without prejudice.
“A party's right to indemnification may arise from a contract or may be implied based upon the law's notion of what is fair and proper as between the parties.' ... Common law indemnification is generally available in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer'.”
McCarthy v. Turner Construction, Inc., 17 NY3d 369, 374–375 (2011) (internal citation omitted).
[A] party cannot obtain common law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part. But a party's (e.g., a general contractor's) authority to supervise the work and implement safety procedures is not alone a sufficient basis for requiring common law indemnification. Liability for indemnification may only be imposed against those parties (i.e, indemnitors) who exercise actual supervision. Thus, if a party with contractual authority to direct and supervise the work at a job site never exercises that authority because it subcontracted its contractual duties to an entity that actually directed and supervised the work, a common law indemnification claim will not lie against that party on the basis of its contractual authority alone.
Id. at 377–378 (internal citations omitted).
In the case at bar, no evidence has been presented to indicate that Stratis actually supervised or controlled plaintiff's work so as to entitle Stockbridge to common-law indemnification from it and, hence, the portion of Stockbridge's motion seeking common-law indemnification from Stratis should be denied.
“A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.” Drzewinski v. Atlantic Scaffold & Ladder Company, Inc., 70 N.Y.2d 774, 777 (1987). According to the terms of the contract between Stockbridge and Stratis, Stratis agreed to indemnify Stockbridge for any injuries resulting from its own acts or omissions.
At this stage of the action there has been no determination as to the liability of Stratis with regard to plaintiff's injuries, and the court has not been asked to render a decision granting summary judgment in favor of plaintiff, either by motion or request to search the record. See e.g. Howard & Norman Baker, Ltd. v. American Safety Casualty Insurance Company, 75 AD3d 533 (2d Dept 2010). Therefore, it would be premature to grant this portion of Stockbridge's motion seeking contractual indemnification from Stratis.
For the same reasons, that branch of Stockbridge's motion seeking common-law and contractual indemnification from Sanita is similarly denied, without prejudice.
CPLR 2221(e) states:
A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the prior motion.
The court notes that, at the time that the prior decision was rendered, the court was not presented with many of the depositions appearing as attachments to the instant motion and, in the interests of justice, will assume that the failure of the court to have this motion and accompanying documents before it was caused by clerical error. Therefore, Sanita's motion to renew and reargue shall be granted.
That portion of Sanita's motion seeking to dismiss Stratis and Stockbridge's claims for indemnification based on Workers' Compensation Law § 11 is denied. Since the contract between Stockbridge and Sanita was entered into prior to the accident, and the indemnification is limited both to injuries caused by Sanita's own action and only to the fullest extent permitted by law, Stratis, as Stockbridge's agent and general contractor, and Stockbridge, as the owner, may be entitled to contractual indemnification if Sanita is found totally or partially responsible for plaintiff's injuries. Rodrigues v. N & S Building Contractors, Inc., 5 NY3d 427 (2005).
Similarly, that portion of Sanita's motion seeking to dismiss Stratis and Stockbridge's claims for indemnification based on an alleged violation of GOL § 5–322.1 shall be denied, because the language of the contractual provision limits indemnification to Sanita's own actions and only to the extent permitted by law. Brooks v. Judlau Contracting, Inc., 11 NY3d 204 (2008).
Moreover, even though Sanita is plaintiff's employer, contribution by Sanita to Stratis and Stockbridge is not precluded. Guiga v. JLS Construction Company, Inc., 255 A.D.2d 244 (1st Dept 1998); Bieber v. Tower Builder and Contractor Corp., 216 A.D.2d 431 (2d Dept 1995).
Lastly, that branch of Sanita's motion seeking to dismiss the claims asserted as against it for common-law indemnification shall be denied.
“To establish a claim for common-law indemnification, the one 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' [internal citation omitted].” Perri v. Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 684–685 (2d Dept 2005). As liability has not been established, these claims, for the same reasons stated above, cannot be dismissed. “In the absence of a jury finding in the underlying action, any claim of an entitlement to indemnification would be premature.” Bovis Lend Lease LMB Inc. v. Garito Contracting, Inc., 65 AD3d 872, 875 (1st Dept 2009); Crespo v. City of New York, 303 A.D.2d 166 (1st Dept 2003); 79th Realty Co. v. X.L.O. Concrete Corp., 247 A.D.2d 256, 257 (1st Dept 1998).
Stratis' cross-motion for leave to reargue is denied.
Motions for leave to reargue are addressed to the sound discretion of the court, and will be granted upon a showing that the court overlooked or misapprehended facts or law or mistakenly arrived at its earlier decision. Marini v. Lombardo, 17 AD3d 545 (2d Dept 2005). A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present the same arguments previously posited. Pryor v. Commonwealth Land Title Insurance Company, 17 AD3d 434 (2d Dept 2005).
In the instant matter, Stratis has presented no new arguments to the court, but merely reiterates its previous position. Therefore, Stratis' cross-motion will be denied.
Plaintiff's cross-motion for leave to reargue is granted. Plaintiff asserts that Industrial Code § 23–1.16 is sufficient to support his Labor Law § 241(6) cause of action. Industrial Code § 23–1.16 requires approval, minimum dimensions, instruction, inspection and maintenance protocols for safety belts, harnesses and all special devices for attachment to hanging lifelines. However, no evidence has been presented that any such devices were being used by plaintiff or that a failure to get such approval, inter alia, required by § 23–1.16 for such devices was a proximate cause of plaintiff's injuries, and, consequently, such provision is insufficient to support plaintiff's cause of action based on a violation of Labor Law § 241(6). Dzieran v. 1800 Boston Road, LLC, 25 AD3d 336,supra.
The court finds unpersuasive plaintiff's argument that this section of the Industrial Code is sufficient to support his Labor Law § 241(6) claim because such devices should have been provided. That is not what section 23–1.16 of the Industrial Code states; it is only concerned with approval, specifications, inspection and maintenance of such devices when they are used, but does not require the use of such devices. Therefore upon reargument the court adheres to its earlier decision dismissing plaintiff's Labor Law § 241(6) cause of action.
Accordingly, it is hereby
ORDERED that Stockbridge Homes, LLC's motion for leave to reargue (motion sequence number 005) is GRANTED; and it is further
ORDERED that, upon reargument, the portion of Stockbridge Homes, LLC's motion seeking to dismiss plaintiff's causes of action asserted as against it based on common-law negligence and violations of Labor Law §§ 200 and 241(6) is GRANTED and those causes of action asserted as against Stockbridge Homes, LLC, are DISMISSED; and it is further
ORDERED that the remainder of Stockbridge Homes, LLC's motion is DENIED; and it is further
ORDERED that the motion of Sanita Construction Company, Inc., for leave to renew and reargue (motion sequence number 006) is GRANTED; and it is further
ORDERED that, upon reargument, Sanita's application to dismiss the third-party claims asserted as against it for contribution and common-law and contractual indemnification is DENIED; and it is further
ORDERED that Stratis Builders, LLC's cross-motion for leave to reargue is DENIED; and it is further
ORDERED that plaintiff's cross-motion for leave to reargue is GRANTED and, upon reargument, the court adheres to its Decision and Order dated February 18, 2011.
This is the decision and order of the court.