Opinion
INDEX NO. 162659/2015 Third-Party Index No. 595214/16 Second Third-Party Index No. 595714/16
09-16-2019
ROY FINDLEY, Plaintiff, v. NEWMARK HOLDINGS, LLC, 40 WORTH ASSOCIATES LLC and WHITESTAR CONSULTING & CONTRACTING, INC., Defendants. NEWMARK HOLDINGS, LLC and 40 WORTH ASSOCIATES LLC, Third-Party Plaintiffs, v. RAINBOW ELECTRIC COMPANY, INC., Third-Party Defendant. WHITESTAR CONSULTING & CONTRACTING, INC., Second Third-Party Plaintiff, v. RAINBOW ELECTRIC CO., INC. and RAINBOW ELECTRIC INC., Second Third-Party Defendants.
NYSCEF DOC. NO. 195 Mot. Seq. Nos. 003, 004, & 005 DAVID B. COHEN, J. :
Motion sequence numbers 003, 004, and 005 are consolidated for disposition.
In this action arising out of a construction site accident, plaintiff Roy Findley, an electrician, alleges that he was seriously burned when he was electrocuted on April 29, 2015 at the premises located at 40 Worth Street in Manhattan (hereinafter, the premises). Third-party defendant/second third-party defendant Rainbow Electric Company of New York f/k/a Rainbow Electric Company, Inc. i/s/h/a Rainbow Electric Inc. (Rainbow) moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint and second third-party complaint (motion sequence number 003).
Defendant Whitestar Consulting & Contracting, Inc. (Whitestar) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims and counterclaims against it (motion sequence number 004).
Defendants/third-party plaintiffs Newmark Holdings, LLC (Newmark) and 40 Worth Associates, LLC (40 Worth) move, pursuant to CPLR 3212, for an order: (1) dismissing the complaint and all cross claims and counterclaims against them; (2) awarding them conditional summary judgment on their cross claim for contractual indemnification against Whitestar; and (3) awarding them conditional summary judgment on their third-party claim for contractual indemnification against Rainbow (motion sequence number 005).
BACKGROUND
It is undisputed that 40 Worth and Newmark were the owner and managing agent of the premises. On December 18, 2014, Newmark, as agent for 40 Worth, hired Whitestar as a general contractor for the third-floor charity water build-out project. By purchase order number 3179 dated November 12, 2014, Whitestar retained Rainbow to perform electrical work. Plaintiff was an employee of Rainbow on the date of the accident.
Plaintiff testified that, on the date of the accident, he had been working for Rainbow for almost one year (plaintiff tr at 19). He testified that he was "pretty much an electrician" (id.). According to plaintiff, his job was "always the same," he was the "guy that reads the blueprint and dictates the work, pretty much" (id.). He had an accident on April 29, 2015 at the 40 Worth job location (id. at 18, 19). Three floors were being renovated at the premises (id. at 19-20). Plaintiff stated that he was at the site for "maybe ten days before the accident" in total (id. at 20-21). He had been there for about three days continuously before the accident (id. at 23). Plaintiff described his job duties as follows: "[m]y job was pretty much pretty much power distribution, so they didn't need me to run the outlets or the lights or stuff like that. They just needed me to connect the wires" (id. at 21). He further stated that his "job would be the 4-inch pipes, the pipe guy," and that he would "run the wires to feed that floor" (id.). Plaintiff did not "do[] the necessary outlets or lights, stuff like that. They have other guys that do that kind of . . . [work]" (id. at 21-22). Plaintiff's boss, Al Dattolo (Dattolo) from Rainbow, gave him instructions as to what had to be done (id. at 23). Plaintiff was connecting the wires from the third floor to the basement (id. at 24-25). Plaintiff had not been working with live power up until the accident; he was just "splicing the wires" (id. at 26).
On the date of the accident, plaintiff started working at about 7:00 a.m. and worked all day in the basement connecting the risers (id. at 34, 35). Plaintiff "safe[d] off the area" by using wood as an insulator (id. at 35). Plaintiff testified that the last connections were to the live power (id. at 41). He asked Dattolo three times throughout the day whether they should shut off the power and the night before (id.). Dattolo told him that he had to get in touch with Tom Lambe (Lambe), the building manager (id.). Dattolo later informed plaintiff that he could not "shut down the building," and that plaintiff had to "do it live" because they did not want to disturb the other tenants (id. at 42). The circuit breaker on the third floor was in the "off" position before he started working (id. at 59). Plaintiff called Dattolo after lunch, and plaintiff told Dattolo that "the stuff that he asked for didn't come, like that gloves, arc suit" (id. at 44). Dattolo responded to "get it done," and to do the work without the gloves and arc suit (id.). At 2:30 p.m., before plaintiff made the actual connections, plaintiff asked Dattolo to shut down the power because "it was a little bit too dangerous" (id. at 49). Dattolo again told plaintiff to do the work "live" (id.). After telling Dattolo that he did not have insulated gloves or an arc suit, Dattolo told plaintiff to "Stop being a baby" (id. at 50, 51). Plaintiff testified that there was no lockout/tagout procedure used (id. at 177, 178). According to plaintiff, it was Rainbow's responsibility to ensure that workers used such a procedure (id. at 178). He further testified that, as far as he knew, it was standard procedure to wear a metal belt buckle when working on electrical panels (id. at 74, 75). Plaintiff stood in the back of the unit and drilled three holes into the copper busbars that were live with electrical current (id. at 46, 47).
Plaintiff testified that his accident occurred as he was attempting to set the last of the three parts of electrical wire to the lug nut installed on the main panel's electrical source (id. at 61). The electrical wire dropped inside the electrical panel, and plaintiff's left hand became wedged in the same area, coming into contact with the busbar that contained live electrical current (id. at 61, 62). He received an electrical shock from the live current in the busbar (id. at 61, 62, 64). Plaintiff testified that the building porter had opened the electrical room for plaintiff (id. at 92). Plaintiff told him that he was connecting the wires from the riser (id.). Plaintiff further testified that, if the circuit breaker was in the wrong position upstairs, the electricity could have "back-fed" even though there was no electrical load on the system (id. at 57, 58, 61).
Lambe, Newmark's property manager, testified that Newmark hired Whitestar as a general contractor for an office build-out (Lambe tr at 8, 12). Lambe testified that he had electrical training, and that he was an operating engineer (id. at 21). According to Lambe, Dattolo asked him if he could pull wires from a pull box into the ceiling (id. at 23). Lambe said that the building would schedule a shutdown either Friday night or on the weekend (id.). Lambe testified that he controlled access to the switch gear room, and that he met Dattolo in the switchgear room at around 9:00 a.m. (id. at 25). Lambe testified that there is "no tying into anything that's hot, everything is shut down" (id. at 26). The shutdowns were scheduled for Fridays after 9:00 p.m. and on the weekends so as not to interrupt the tenant's normal business hours (id. at 29). After the accident, Lambe spoke with Dattolo, who said "I don't know why he did it, I told him he wasn't supposed to do anything like that" meaning "[t]ying into the live board" (id. at 38). According to Lambe, plaintiff "arced the lug onto the live bus detail to the frame of the switch gear," and that there was an "arc flash" (id.). The power would have been "cut" within two weeks of the request (id. at 57, 58). An electrician would shut down the switch gear (id. at 31). He would not do it himself; "you got to be suited up, got to have all the gloves, arc shields" (id.).
Dattolo testified at his deposition on October 13, 2017 that he was a consultant for Rainbow, and not an owner of Rainbow (Dattolo tr at 14, 45). He did not recall having any conversations with Lambe about shutting off the building's power (id. at 21). Dattolo did not remember whether plaintiff ever asked for an arc suit, but also stated that plaintiff would not have any use for it (id. at 66). The live hook-up was not scheduled to be performed that day (id. at 86). He did not recall whether any Rainbow employee requested that the building shut down the power (id. at 112). Dattolo stated that plaintiff was not authorized or qualified to perform the work that he was doing at the time of the accident (id. at 121, 134). Rainbow's employee, Adam Blitz, would have performed the connections when they were scheduled, with the power off (id. at 85, 134, 135). Whitestar provided a Standard Form Agreement Between Contractor and Subcontractor (Standard Form Agreement) (id. at 143-144). According to Dattolo, Whitestar issued these types of agreements "per job" (id. at 144). Dattolo did not believe that there was an agreement for that job; Rainbow had performed multiple jobs there, and there was one dated more than a year prior to that agreement (id.). He did internal research regarding the Standard Form Agreement and determined that it did not apply to the job at the premises (id. at 145). He believed that it applied to a project at "5-something Broadway" (id.).
In an affidavit, Dattolo avers that he has been the owner of Rainbow since December 8, 2015 (Dattolo aff, ¶ 1). Dattolo states that, in April 2014, Whitestar provided him with a Standard Form Agreement in connection with a project that was scheduled to be performed at 594 Broadway in Manhattan (id., ¶ 5). "The scope of that project was to install 2000 amp feeder on lateral of 12 story building for a new chiller project" (id.). Neither Dattolo nor any Rainbow employee drafted the Standard Form Agreement (id., ¶ 6). The Standard Form Agreement does not contain a project name, project location, date of the project, or any other identifying information, and does not include the name of an "owner" (id., ¶ 7). Dattolo understood that the agreement applied to the project that it was about to commence with Whitestar at 594 Broadway (id., ¶ 8). No Whitestar representative ever told him that that agreement would apply to all work between Rainbow and Whitestar going forward (id., ¶ 9). Rainbow did not enter into an indemnification agreement with Whitestar for the 40 Worth job (id., ¶ 12).
Frederick Basli (Basli) testified that he was employed by Whitestar from 2012 through February 1, 2014 (Basli tr at 10-11). Basli returned to work for Whitestar in June 2017, and is currently the director of construction (id. at 13). At the time that the Standard Form Agreement was signed by Dattolo on behalf of Rainbow on April 1, 2014, Basli did not work for Whitestar (id. at 33). Basli was not involved in negotiating the Standard Form Agreement (id.). However, Basli testified that the Standard Form Agreement was not "job specific"; rather, it was "subcontractor specific" (id. at 36). Whitestar did not "link" indemnification agreements to contracts or buildings (id.).
Lawrence Budabin (Budabin), Whitestar's project manager for the 40 Worth project, testified that he did not recall that Rainbow ever requested that the power be shut off (Budabin tr at 55). Whitestar did not direct Rainbow's work (id. at 70).
Plaintiff commenced this action on December 11, 2015, asserting two causes of action seeking recovery for: (1) common-law negligence; and (2) violations of Labor Law §§ 200 and 241 (6), including 12 NYCRR 23-1.13.
Newmark and 40 Worth subsequently impleaded Rainbow, asserting the following four claims: (1) common-law indemnification; (2) contribution; (3) contractual indemnification; and (4) failure to procure appropriate general liability insurance coverage.
Whitestar also brought a second third-party action against Rainbow, asserting eight causes of action seeking: (1) common-law indemnification; (2) contribution; (3) contractual indemnification; and (4) damages for failure to procure insurance.
By so-ordered stipulation dated March 1, 2017, Newmark, 40 Worth, and Whitestar "discontinued, without prejudice their impleaders sounding in common-law negligence for 'grave injury'" (Jones affirmation in support, exhibit M). That stipulation further provided that "[t]he contractual cause(s) of action persist and are unaffected by the instant stipulation" (id.). By stipulation of partial discontinuance filed on June 28, 2017, Newmark and 40 Worth discontinued their common-law indemnification claim against Rainbow, without prejudice (id., exhibit N).
DISCUSSION
"'On a motion for summary judgment, the movant bears the burden of adducing affirmative evidence of its entitlement to summary judgment'" (Scafe v Schindler El. Corp., 111 AD3d 556, 556 [1st Dept 2013], quoting Cole v Homes for the Homeless Inst., Inc., 93 AD3d 593, 594 [1st Dept 2012]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Once this requirement is met, the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (Ostrov v Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). The court's function on a motion for summary judgment is "issue-finding, rather than issue-determination" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY3d 941 [1957] [internal quotation marks and citation omitted]).
As a preliminary matter, Newmark and 40 Worth argue that plaintiff's Labor Law § 240 (1) claim should be dismissed, because plaintiff did not sustain a gravity-related accident. However, plaintiff did not plead a cause of action seeking recovery under Labor Law § 240 (1) (complaint, ¶ 29). Plaintiff also does not argue, in opposition, that he is seeking to recover damages for violation of section 240 (1) (Fischman affirmation in opposition, ¶¶ 3, 4).
Labor Law § 241 (6) requires that all contractors, owners, and their agents comply with the following requirement:
"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."
Labor Law § 241 (6) imposes a nondelegable duty on owners, contractors, and their agents to "provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations" set forth in the Industrial Code (Misicki v Caradonna, 12 NY3d 511, 515 [2009] [internal quotation marks and citation omitted]). The legislative purpose in enacting the statute was to place "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998] [internal quotation marks and citations omitted]).
To recover under Labor Law § 241 (6), a plaintiff must plead and prove the violation of an applicable and concrete provision of the New York State Industrial Code, containing "specific, positive command[s]," and show that the violation was a proximate cause of the accident (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 271 [1st Dept 2007], lv denied 10 NY3d 710 [2008], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-504 [1993]). "[O]nce it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury" (Rizzuto, 91 NY2d at 350). Moreover, "[s]ince an owner or general contractor's vicarious liability under section 241(6) is not dependent on its personal capacity to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure [is] irrelevant to the imposition of Labor Law § 241 (6) liability" (id. at 352). Comparative negligence is a defense pursuant to section 241 (6) (Once v Service Ctr. of N.Y., 96 AD3d 483, 483 [1st Dept 2012], lv dismissed 20 NY3d 1075 [2013]).
Plaintiff's complaint alleges a violation of 12 NYCRR 23-1.13 (complaint, ¶ 29). Plaintiff's verified bill of particulars alleges violations of 12 NYCRR 23-1.13 and Administrative Code § 27-3024, which incorporated National Electrical Code section 110.14 (verified bill of particulars, ¶ 11). Plaintiff's supplemental bill of particulars alleges violations of 12 NYCRR 23-1.7, 12 NYCRR 23-1.8, 12 NYCRR 23-1.10, 12 NYCRR 23-1.13, and Administrative Code § 27-3024, which incorporated National Electrical Code section 110.14 (supplemental bill of particulars, ¶ 2).
Whitestar moves for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim, arguing that the cited provisions are inapplicable. Whitestar further contends that plaintiff was the superseding and sole proximate cause of his accident. Whitestar maintains that: (1) plaintiff was knowledgeable as to the risks involved, yet proceeded to perform his task; (2) plaintiff failed to use lockout/tagout procedures; (3) the building had a procedure in place to shut off the power; and (4) defendants had no notice of the work, and no ability to deenergize the power.
Newmark and 40 Worth similarly argue that plaintiff's Labor Law § 241 (6) claim must be dismissed, because appropriate building electrical shut-off protocols were in place and they had no notice of plaintiff's work.
In opposition to defendants' motions, plaintiff only relies on Industrial Code sections 12 NYCRR 23-1.13 (b) (4) and (b) (5) (Fischman affirmation in opposition, ¶ 3). Therefore, plaintiff has abandoned reliance on the remaining Industrial Code provisions and other provisions (see Pita v Roosevelt Union Free Sch. Dist., 156 AD3d 833, 835 [2d Dept 2017] ["The plaintiff has abandoned his reliance on provisions of the Industrial Code other than 12 NYCRR 23-1.7 (f) by failing to address those provisions in his opposition to the defendants' motion . . ."]). Therefore, the court shall only consider Industrial Code sections 23-1.13 (b) (4) and (5). 12 NYCRR 23-1.13 (b) (4) and (5)
12 NYCRR 23-1.13 (b) governs "Electrical hazards." Subdivisions (b) (4) and (b) (5) provide as follows:
"(b) General.
(12 NYCRR 23-1.13 [b] [4], [b] [5]).
***
"(4) Protection of employees. No employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means. In work areas where the exact locations of underground electric power lines are unknown, persons using jack hammers, bars or other hand tools which may contact such power lines shall be provided with insulated protective gloves, body aprons and footwear.
(5) Guarding of switches or other circuit interrupting devices. If protection for employees consists of de-energizing circuits, employers shall cause open switches or other circuit interrupting devices to be guarded against inadvertent closing until such employees are no longer exposed"
Plaintiff contends that there are issues of fact as to whether sections 23-1.13 (b) (4) and (5) served as proximate causes of the accident. According to plaintiff, he was electrocuted because the power was not turned off when he attempted to connect the wiring to the main switch board. In addition, he testified that his employer did not give him any safety equipment. Plaintiff asserts that there is an issue of fact as to whether a circuit breaker on the third or fourth floor caused a back-feed of electrical current through the circuit that plaintiff was working on. In addition, there are triable issues of fact as to whether plaintiff was solely responsible for his injuries. Moreover, his actions cannot be considered a superseding act which broke the causal nexus. Plaintiff further argues that defendants' lack of notice is not a defense to their liability.
Courts have held sections 23-1.13 (b) (4) and (b) (5) to be sufficiently specific to support a Labor Law § 241 (6) claim (Hernandez v Ten Ten Co., 31 AD3d 333, 333-334 [1st Dept 2006]; Adams v Owens-Corning Fiberglass Corp., 260 AD2d 877, 879 [3d Dept 1999]; Snowden v New York City Tr. Auth., 248 AD2d 235, 236 [1st Dept 1998]).
Section 23-1.13 (b) (4) "commands that before work is started, it is to be ascertained whether the work will bring a worker into contact with an electric power circuit, and, if so, that the worker not be permitted to come into contact with the circuit without it being de-energized" (DelRosario v United Nations Fed. Credit Union, 104 AD3d 515, 516 [1st Dept 2013]). Even though section 23-1.13 (b) (4) refers to "employers," an owner and general contractor may be held liable for violation of this provision because they have a nondelegable duty to provide adequate safety protections (see Rubino v 330 Madison Co., LLC, 150 AD3d 603, 604 [1st Dept 2017]; Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275, 275 [1st Dept 2007]; Rice v City of Cortland, 262 AD2d 770, 773 [3d Dept 1999]).
Moreover, the purpose of section 23-1.13 (b) (5) "is to prevent electrical shock to a worker by the inadvertent closing of an open switch or circuit interrupting device" (Zak v United Parcel Serv., 262 AD2d 252, 253 [1st Dept 1999]).
Proximate cause requires that a defendant's act or failure to act "'was a substantial cause of the events which produced the injury'" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]). Causation may be decided as a matter of law "where only one conclusion may be drawn from the established facts" (Derdiarian, 51 NY2d at 315). "An independent intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the defendants' conduct that responsibility for the injury should not reasonably be attributed to them" (Gordon, 82 NY2d at 562).
Defendants have failed to establish that plaintiff's actions were so reckless or unforeseeable so as to constitute the sole proximate cause of his accident or a superseding, intervening cause as a matter of law (see Addonisio v City of New York, 112 AD3d 554, 555 [1st Dept 2013]; Baumann v Metropolitan Life Ins. Co., 17 AD3d 260, 261-262 [1st Dept 2005] [failure to shut off electricity was not a superseding act which broke causal nexus]). Plaintiff testified that Dattolo directed him to perform the work "live" without safety equipment (plaintiff tr at 42, 49, 51). Plaintiff believed that he would have been fired if he did not do what Dattolo told him to do (id. at 76). Moreover, "[t]he risk that a worker would perform such an act was 'the very reason' that defendants owed the worker a duty to comply with any safety standards . . . ." (Addonisio, 112 AD3d at 555 [internal quotation marks and citations omitted]). Plaintiff's decision to work at a live electrical panel is relevant to his comparative negligence (see Lorefice v Reckson Operating Partnership, 269 AD2d 572, 573 [2d Dept 2000]).
Moreover, defendants have failed to establish that sections 23-1.13 (b) (4) and (b) (5) are inapplicable or that they complied with these regulations (see Addonisio, 112 AD3d at 555). In any event, plaintiff has raised issues of fact as to whether a violation of these regulations was a proximate cause of his accident. Plaintiff testified that he was shocked (plaintiff tr at 64, 65). He further testified that his employer did not give him an arc suit and insulated gloves (id. at 202-203). Plaintiff testified that the main circuit breaker on the third or fourth floor was turned in the "off" position before lunch (id. at 59). If the breaker was in the wrong position upstairs, there was a possibility that "reverse feed" could have occurred, causing him to be shocked (id. at 61). Furthermore, plaintiff stated that there was no lockout/tagout procedure (id. at 177, 178).
Although defendants rely on Guaman v City of New York (158 AD3d 492 [1st Dept 2018], lv denied 32 NY3d 903 [2018]), the court finds that case to be distinguishable. In Guaman, the plaintiff was provided with adequate safety devices that would have prevented his fall through an unguarded opening in the floor (id. at 493). By contrast, in this case, defendants have not established that a procedure to turn off electricity constitutes a safety device, i.e., "effective insulation" or "insulated protective gloves, body aprons and footwear" required by 12 NYCRR 23-1.13 (b)(4).
While defendants argue that they had no notice that plaintiff was going to perform the work, liability under section 241 (6) does not depend upon defendants' personal responsibility to prevent or cure a dangerous condition (see Rizzuto, 98 NY2d at 352).
Accordingly, plaintiff has a valid Labor Law § 241 (6) claim to the extent it is predicated upon violations of 12 NYCRR 23-1.13 (b) (4) and (5). Therefore, the branches of defendants' motions seeking dismissal of plaintiff's section 241 (6) claim are granted except as to these Industrial Code provisions.
C. Labor Law § 200 and Common-Law Negligence
Whitestar argues that plaintiff's section 200 and negligence claims should be dismissed because it did not have the ability to control plaintiff's work, and did not have any notice that plaintiff's work was going to be performed.
For their part, Newmark and 40 Worth contend that they did not supervise or direct the means and methods of plaintiff's work.
In response, plaintiff points out that defendants had a plan to have the building's power turned off when the wiring was to be hooked up to the building's electrical source. In addition, plaintiff argues that there is evidence that Lambe told Dattolo that the hookup should be done "live."
Labor Law § 200 (1) provides as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section."
It is well established that Labor Law § 200 is a codification of the common-law duty imposed upon landowners and general contractors and their agents to provide workers with a reasonably safe place to work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). "Liability pursuant to Labor Law § 200 may fall into two broad categories: workers 'injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed'" (McLean v 405 Webster Ave. Assoc., 98 AD3d 1090, 1093 [2d Dept 2012], quoting Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]).
Where the plaintiff's injury results from a dangerous or defective premises condition, "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" (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] [internal quotation marks and citation omitted]). Similarly, "'a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition'" (Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009], quoting Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708 [2d Dept 2007]).
By contrast, where the plaintiff's injury stems from the manner in which the work is performed, "liability for common-law negligence or under Labor Law § 200 may be imposed against an owner or general contractor if it 'actually exercised supervisory control over the injury-producing work'" (Suconota v Knickerbocker Props., LLC, 116 AD3d 508, 508 [1st Dept 2014], quoting Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 144 [1st Dept 2012]).
Here, plaintiff's accident arose out of the means and methods of the work. There is no evidence of a dangerous premises condition; rather, plaintiff's accident arose from the method in which the work was performed. Defendants have established that they did not exercise supervision and control over the injury-producing work. Plaintiff received his instructions from Dattolo, and requested safety equipment from Dattolo (plaintiff tr at 30, 44, 49, 50).
Although plaintiff argues that defendants had a protocol in place to shut down the power, this implicates, at most, general supervision over the work. Monitoring and oversight of the timing and quality of the work, mere presence on the job site, and a general duty to ensure compliance with safety regulations, are insufficient to impose liability under section 200 or in common-law negligence (see Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579-580 [1st Dept 2012]; Paz v City of New York, 85 AD3d 519, 519-520 [1st Dept 2011]; Carty v Port Auth. of N.Y. & N.J., 32 AD3d 732, 733 [1st Dept 2006], lv denied 8 NY3d 814 [2007]).
Plaintiff also argues that there is evidence that Lambe directed the work to be done with the power on. However, plaintiff only offers hearsay in opposition, i.e., plaintiff's testimony that Lambe told Dattolo "that we should do it live" (plaintiff tr at 42, 68). While hearsay may in some instances be sufficient to defeat summary judgment, hearsay is the only evidence submitted in opposition (see O'Halloran v City of New York, 78 AD3d 536, 537 [1st Dept 2010]), and plaintiff does not provide an acceptable excuse for failing to submit evidence in admissible form (see Shapiro v Butler, 273 AD2d 657, 660 [3d Dept 2000]).
Accordingly, plaintiff's Labor Law § 200 and common-law negligence claims are dismissed.
D. Newmark and 40 Worth's Contractual Indemnification Claim Against Whitestar
Newmark and 40 Worth move for summary judgment on their contractual indemnification claim against Whitestar. Newmark and 40 Worth argue that they are entitled to contractual indemnification under either plaintiff's version of the facts or Dattolo's version of the facts.
The contractual indemnification provision in Whitestar's contract provides as follows:
"§ 9.15 INDEMNIFICATION(Guglielmo affirmation in support, exhibit H at 10 [emphasis supplied]).
"§ 9.15.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from the performance of the Work, provided that such claim, damage, loss or expenses is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the 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 whole or 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 Section 9.15.1"
In opposition, Whitestar contends that the provision violates the General Obligations Law because it purports to indemnify Newmark and 40 Worth for their own negligence. According to Whitestar, it did not have notice of the work and did not have the ability to grant access or terminate the power source. Moreover, Newmark and 40 Worth controlled access to the electrical room and had the authority to shut off the electricity.
"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" (Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [1st Dept 2005] [internal quotation marks and citations omitted]). "[I]n contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability. Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant" (Correia v Professional Data Mgt., 259 AD2d 60, 64 [1st Dept 1999]).
General Obligations Law § 5-322.1 (1) voids indemnification clauses in construction contracts that "purport[] to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part . . . ."
An agreement to indemnify in connection with a construction contract is void and unenforceable to the extent that such agreement contemplates full indemnification of a party for its own negligence (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 [1997], rearg denied 90 NY2d 1008 [1997]). However, an indemnification clause which provides for partial indemnification to the extent that the party to be indemnified was not negligent, i.e., "to the extent permitted by law," does not violate the General Obligations Law (see Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 [2008] [indemnification "to the fullest extent permitted by law" contemplated partial indemnification and was permissible under statute]). Even if the indemnification clause does not contain the savings language, it may nevertheless be enforced where the party to be indemnified is found to be free of any negligence (Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179 [1990]; Collins v Switzer Constr. Group, Inc., 69 AD3d 407, 408 [1st Dept 2010]). Since the provision contains the savings language "[t]o the fullest extent permitted by law," it does not violate the General Obligations Law.
Here, the indemnification provision requires Whitestar to indemnify 40 Worth and its agents for "claims . . . including but not limited to attorneys' fees, arising out of or resulting from the performance of the Work, . . . caused by the 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" (Guglielmo affirmation in support, exhibit H at 10 [emphasis added]). Even if Whitestar did not have notice of the work, and even if its own acts and omissions did not cause the accident, Whitestar still must indemnify Newmark and 40 Worth for Rainbow's negligence. As noted above, Newmark and 40 Worth have established their freedom from negligence. However, Newmark and 40 Worth have not demonstrated that Rainbow or anyone directly or indirectly employed by it was negligent. Accordingly, 40 Worth and Newmark are not entitled to full indemnification from Whitestar at this juncture. Nonetheless, the court grants Newmark and 40 Worth conditional contractual indemnification from Whitestar in advance of any factual determination as to Rainbow's negligence or anyone directly or indirectly by employed it (see Sanchez v 404 Park Partners, LP, 168 AD3d 491, 492 [1st Dept 2019]; Johnson v Chelsea Grand E., LLC, 124 AD3d 542, 543 [1st Dept 2015]).
E. Whitestar's Contractual Indemnification and Failure to Procure Insurance Claims Against Rainbow/Newmark and 40 Worth's Contractual Indemnification and Failure to Procure Insurance Claims Against Rainbow
Rainbow moves for summary judgment dismissing Whitestar's and Newmark and 40 Worth's contractual indemnification and failure to procure insurance claims. Rainbow contends that the Standard Form Agreement did not apply to the project or job location. According to Rainbow, Basli did not work for Rainbow when the Standard Form Agreement was executed. Furthermore, Rainbow asserts that, to the extent that the court finds the Standard Form Agreement to be ambiguous, any ambiguities must be construed in favor of Rainbow. Moreover, Rainbow argues that there is no admissible evidence that Rainbow intended to indemnify Newmark or 40 Worth.
Whitestar moves for summary judgment on its contractual indemnification claim against Rainbow in its favor, which is based upon the indemnification provision in the Standard Form Agreement between Whitestar and Rainbow.
The Standard Form Agreement provides as follows:
"ARTICLE 1.0 INDEMNIFICATION
1.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner and/or Contractor and employee of either of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Subcontractor's Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), including loss of use resulting therefrom, cause[d] in whole or in part by negligent acts or omissions of the Subcontractor, the Subcontractor's Sub-subcontractors, 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 otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in the Paragraph 1.0.
1.2 In claims against any person or entity indemnified under this Paragraph 1.0 by any employee of the Subcontractor, the Subcontractor's Subsubcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 1.0 shall not be limited by a limitation on amount or type of damages, compensation, or benefits payable by or for the Subcontractor or the Subcontractor's Sub-subcontractors under Workers' or Workmen's Compensation Acts or other employee benefit acts"(Hague affirmation in support, exhibit N at 1).
Whitestar contends, in moving for summary judgment, that: (1) plaintiff was employed by Rainbow on the date of the accident; (2) the accident "ar[ose] out of or result[ed] from the performance of [Rainbow's] Work"; and (3) the accident was caused, in whole or in part, by plaintiff's own negligence or a Rainbow employee's failure to inform Whitestar, 40 Worth, and Newmark that the power needed to be shut off. Whitestar maintains that there is no place to list either a job or location on the Standard Form Agreement. In addition, Whitestar points out that Rainbow has not produced any indemnification agreements for other job locations in discovery.
Newmark and 40 Worth also seek full or conditional contractual indemnification from Rainbow, and submit a certificate of insurance (Guglielmo affirmation in support, exhibit Q) as evidence that Rainbow acted pursuant to the purchase order and Standard Form Agreement.
Workers' Compensation Law § 11 permits third-party claims for indemnification against an employer arising from the employee's injury if such third-party claims are "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." A determination of whether a written contract satisfies Workers' Compensation Law § 11 involves a two-part inquiry. "First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of section 11" (Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 432 [2005]).
The Court of Appeals has held that "the common-law rule - which authorizes review of the course of conduct between the parties to determine whether there was a meeting of minds sufficient to give rise to an enforceable contract - governs the validity of a written indemnification agreement under Workers' Compensation Law § 11" (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369-370 [2005], rearg denied 5 NY3d 746 [2005]). "In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look [] to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds" (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 399 [1977]). The court must consider "the attendant circumstances, the situation of the parties, and the objectives they were striving to attain" (Ruane v Allen-Stevenson School, 82 AD3d 615, 616 [1st Dept 2011]).
Here, there are questions of fact as to whether Whitestar and Rainbow agreed to be bound by the Standard Form Agreement for the project. Dattolo testified that Whitestar issued these types of agreements "per job" (Dattolo tr at 143-144). Nevertheless, Basli testified that the Standard Form Agreement was never linked to a contract, and that the agreement was subcontractor-specific (Basli tr at 35, 36). Basli was employed by Whitestar from 2012 through February 2014 (id. at 10-11), before the Standard Form Agreement was executed. Thus, even though Basli was not employed by Whitestar when the Standard Form Agreement was signed, he has sufficiently demonstrated personal knowledge about Whitestar's business practices. Moreover, Rainbow provided a certificate of insurance (Hague affirmation in support, exhibit Q), indicating that it acted in conformity with the insurance requirements of the Standard Form Agreement. Rainbow has also not produced any other indemnification agreements for other projects. "[W]here a finding of whether an intent to contract is dependent as well on other evidence from which differing inferences may be drawn, a question of fact arises" (Brown Bros. Elec. Contrs., 41 NY2d at 400). Accordingly, Rainbow's motion seeking dismissal of the contractual indemnification and failure to procure claims against it, and the branches of Whitestar's and Newmark and 40 Worth's motions seeking contractual indemnification from Rainbow, must be denied (see Tullino v Pyramid Cos., 78 AD3d 1041, 1042-1043 [2d Dept 2010] [issue of fact as to whether parties intended to be bound by Appendix A, including its indemnification provision]; Staub v William H. Lane, Inc., 58 AD3d 933, 935 [3d Dept 2009] [issue of fact as to whether parties agreed to be bound by indemnification provision of AIA contract A401]; Brinson v Kulback's & Assoc., 296 AD2d 850, 852 [4th Dept 2002], rearg denied 747 NYS2d 852 [4th Dept 2002] [where plaintiff's employer denied that indemnification agreement applied to contract for drugstore, but defendants asserted that it did apply, the Court held that "(b)ecause the determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, the issue is one of fact for the trier of fact and cannot be resolved as a matter of law"] [internal quotation marks and citation omitted]).
Although Rainbow argues that Newmark and 40 Worth are not entitled to contractual indemnification, because they are not identified in the Standard Form Agreement, the court also finds that there are issues of fact as to whether the parties intended the provision to apply to these entities. The indemnification provision requires Rainbow to indemnify the "Owner" (Jones affirmation in support, exhibit H). However, the term "Owner" is not defined therein (id.). The purchase order dated November 12, 2014 also does not identify Newmark or 40 Worth (id., exhibit K).
CONCLUSION
Accordingly, it is
ORDERED that the motion (sequence number 003) of Rainbow Electric Company of New York f/k/a Rainbow Electric Company, Inc. i/s/h/a Rainbow Electric Inc. for summary judgment is denied; and it is further
ORDERED that the motion (sequence number 004) of defendant/second third-party plaintiff Whitestar Consulting & Contracting, Inc. for summary judgment is granted to the extent of dismissing plaintiff's Labor Law §241 (6) claim except as to the alleged violations of 12 NYCRR 23-1.13 (b) (4) and (5), plaintiff's Labor Law § 200 claim, and plaintiff's common-law negligence claim, and is otherwise denied; and it is further
ORDERED that the motion (sequence number 005) of defendants/third-party plaintiffs Newmark Holdings, LLC and 40 Worth Associates, LLC for summary judgment is granted to the extent of:
• (1) dismissing plaintiff's Labor Law § 241 (6) claim except as to the alleged violations of 12 NYCRR 23-1.13 (b) (4) and (5), plaintiff's Labor Law § 200 claim, and plaintiff's common-law negligence claim, andDated: September 16, 2019
• (2) granting Newmark Holdings, LLC and 40 Worth Associates, LLC conditional summary judgment on their contractual indemnification claim against defendant/second third-party plaintiff Whitestar Consulting & Contracting, Inc.
ENTER:
/s/_________
J.S.C.