Opinion
Index No. 516309/2018
04-06-2022
Robert HAYDUCKA, Jr., Plaintiff, v. The CITY OF NEW YORK, Bedford Carp. Construction, Inc., Bedford Construction Corp. and Carp Construction Corp., Defendants. Bedford-Carp Construction, Inc., Third-Party Plaintiff, v. Tiki Industries, Inc., Third-Party Defendant. The City of New York, Second-Third-Party Plaintiff, v. CB & I E & I Engineering of New York, PC and Aprim Engineering NY PC, Second Third-Party Defendants.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/71-82, 88-97, 105-115, 120-132, 133-145
Petition/Cross Motion and
Affidavits (Affirmations) Annexed
Opposing Affidavits (Affirmations) 117-119, 156-158, 173-183, 161-172,185-186, 189-200 Affidavits/Affirmations in Reply 160, 201-204 Other Papers: Memoranda of Law 116, 148, 149
Defendant/second third-party plaintiff City of New York (the City) moves (motion sequence number 4) for an order, pursuant to CPLR 3212 : (1) dismissing the plaintiff Robert Hayducka, Jr.’s (plaintiff) causes of action predicated on violations of Labor Law 200 and 241 (6) ; and (2) granting summary judgment in the City's favor on its cross-claim for contractual indemnification against defendant/third-party plaintiff Bedford-Carp Construction, Inc. (Bedford-Carp).
Bedford-Carp moves (mot. seq. no. 5) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the plaintiff's Labor Law 200, 241 (6) and common-law negligence causes of action.
Second third-party defendant Aptim Engineering NY PC sued herein as Aprim Engineering NY PC (hereinafter, Aptim) moves (mot. seq. no. 6) for an order: (1) pursuant to CPLR 3211 (a) (1) and/or CPLR 3211 (a) (7), dismissing the second third-party action commenced by the City as against it; (2) or in the alternative, for an order, pursuant to CPLR 603, severing the second third-party action due to prejudice; and (3) for an order, pursuant to CPLR 501 and 510 (1), transferring venue of the action to New York County.
Plaintiff cross-moves (mot. seq. nos. 7 & 8) for an order, pursuant to CPLR 3212, granting partial summary judgment as to liability on his Labor Law § 240 (1) claim against the City and Bedford-Carp.
The court notes that plaintiff's cross motions (mot. seq. nos. 7 & 8) are identical/duplicate and appear to have been filed with the court twice.
Factual Background
This action arises out of an incident in which the plaintiff allegedly sustained injuries on October 25, 2017, while he was working on a construction/excavation project located at or near East 108th Street in Brooklyn, New York. The City entered into a contract with Bedford-Carp to serve as the general contractor on a project which involved the reconstruction of water mains, sanitary sewers, storm sewers and the restoration/installation of roadways and sidewalks. The various roadways, sidewalks and sewers were all owned by the City, including the roadway along East 108th Street where plaintiff's accident is alleged to have taken place. Part of the project involved the excavation of City sidewalks and the installation of steel curbs. Pursuant to a contract dated April 1, 2016, the City apparently hired second third-party defendant CB & I E & I Engineering of New York, PC (CB & I) as the resident engineer to monitor, inspect and oversee the project. The City-CB & I contract was later assigned to and/or assumed by second third-party defendant Aptim, an engineering company. Pursuant to a contract dated February 1, 2017, Bedford-Carp hired third-party defendant Tiki Industries, Inc. (Tiki), a subcontractor, to perform street and sidewalk restoration work on the project. At the time of the accident, the plaintiff was employed by Tiki as a laborer.
Plaintiff testified that on the day of the accident, he was working with a team of Tiki employees outdoors near the intersection of East 108th Street and Flatlands Ave in Brooklyn. The Tiki foreman who supervised the plaintiff was a man named Americo Costa (Costa). The Tiki team had excavated the existing sidewalk in preparation for placing/setting the forms and steel curbs. On the morning of the incident, the Tiki team was to install a 180-foot-long segment of steel curbs as part of their work. Plaintiff explained that part of his responsibilities as a laborer included moving steel curbs into position for installation in preparation for the concrete pour. There were nine individual pieces of curb which were approximately 20 feet long. The curbs were placed in a pile at the beginning of the job site earlier that morning. Utilizing a backhoe, the curb segments were transported, one at a time, to the location where they were to be installed. Steve Privatere, apparently a principal of Tiki, operated the backhoe. Plaintiff testified that he was instructed by his foreman, Costa, to use a metal chain, wrapping it around two prongs on the back of each curb segment, in order to secure it to the backhoe for hoisting. The chain was about six to eight feet in length. According to plaintiff, the manner of using the chain to hoist the curb was not the proper way. He claimed that, prior to working on this project, he had been trained to never use metal on metal when lifting or hoisting, but instead to use canvas straps. Plaintiff testified that he requested to use a nylon strap or tag line instead of the chain, but that Costa could not find any onsite and directed him to proceed with the chain.
Plaintiff assisted with the transport of eight curb segments without incident, and contends that the accident occurred when plaintiff and Privatere attempted to transport the ninth curb. According to plaintiff, the curb was 20 feet long and weighed approximately 500 pounds. After securing the curb with the chain, Privatere commenced driving the backhoe down the street toward the location where it would later be installed. Plaintiff walked behind the backhoe with his hands on the curb to keep it level and prevent it from "teeter-tottering." When the curb started "bouncing and dragging," the plaintiff tried to level it and keep it from swinging into traffic. At that point, the chain slipped from where it was attached to the prongs on the curb, causing the curb to fall (from a height of approximately three feet) on the plaintiff's right foot. As a result, the plaintiff fell and landed in an excavated area, thereby sustaining various alleged injuries.
Procedural History
On or about August 10, 2018, the plaintiff commenced the within action seeking to recover for the injuries he allegedly sustained, asserting claims under common-law negligence, Labor Law §§ 200, 240 (1) and 241 (6). On or about October 18, 2018, Bedford-Carp served a verified answer to the complaint and asserted a cross claim against the City for contribution. The City answered the complaint and asserted cross claims against Bedford-Carp for contractual indemnification and breach of contract for failure to procure insurance. The City subsequently commenced a third-party action against Tiki on or about January 24, 2019, asserting contractual indemnification, contribution and breach of contract for failure to procure insurance claims. Tiki never appeared in the third-party action and a default judgment was entered against it by order of this court dated January 29, 2020 (NYSCEF Doc No. 34). On or about August 11, 2020, the City commenced a second third-party action against Aptim and CB & 1, asserting causes of action for common-law indemnification, negligence, contractual indemnification, and breach of contract for failure to procure insurance. Aptim has not yet filed an answer to the second third-party complaint, and instead has moved, pursuant to CPLR 3211 (a) (1) and/or CPLR 3211 (a) (7), seeking to dismiss the second third-party complaint as against it, or have it severed from the main action. The parties engaged in discovery and on August 13, 2020, the plaintiff filed the note of issue with the court. The following motions and cross-motion ensued.
On or about October 3, 2018, the plaintiff discontinued the action as against defendants Bedford Construction Corp. and Carp. Construction Corp., leaving the City and Bedford-Carp as the remaining defendants in the main action (NYSCEF Doc No. 5).
On October 27, 2020, the City voluntarily withdrew its breach of contract for the failure to procure insurance claim in its second third-party complaint (NYSCEF Doc No. 101, Stipulation of Partial Discontinuance).
Plaintiff's Cross Motion
Plaintiff cross-moves (mot. seq. nos. 7 & 8) for partial summary judgment as to liability on his Labor Law 240 (1) claim against the City and Bedford-Carp (collectively, defendants). As an initial matter, the defendants argue that plaintiff's cross motion, which was not made until December 9, 2020, is untimely under Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6, because it was made more than 60 days after the filing of the note of issue on August 13, 2020 (see Goldin v New York & Presbyt. Hosp. , 112 AD3d 578, 579 [2d Dept 2013] ; CPLR 3212 [a] ). In response, the plaintiff maintains that his cross motion is in fact timely since the 60-day time period to file summary judgment motions was tolled pursuant to the Executive Orders issued by the former New York State governor in response to the Covid-19 pandemic.
On March 20, 2020, due to the ongoing Covid-19 pandemic, the former Governor of New York State, Andrew Cuomo, issued an Executive Order suspending and/or tolling most time limits under New York law, including the time to file summary judgment motions ( 9 NYCRR 8.202.8 ). This suspension was extended up to and including November 3, 2020 ( 9 NYCRR 8.202.72 ). The Second Department has determined that this Executive Order constitutes a toll that "suspends the running of the applicable period of limitation for a finite period" such that "[t]he period of the toll is excluded from the calculation of the [relevant time period]" ( Brash v Richards , 195 AD3d 582 [2d Dept 2021] ). In Brash , the Second Department held that the statutory 30 days to file an appeal, which fell within the tolling period, was to be interpreted as 30 days from November 3, 2020, the date the tolling period ended ( id. at 583 ).
The Executive Order provided, in pertinent part, as follows: "In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the Covid-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020."
"[T]he suspension for civil cases in Executive Order 202.8 ... that tolled any specific time limit for the commencement, filing or service of any legal action, notice, motion or other process or proceeding ... is hereby no longer in effect as of November 4, 2020 ...."
Here, the note of issue was filed on August 13, 2020, and therefore the 60-day time limit to file a summary judgment motion fell within the tolling period. Thus, in calculating the tolling period, the 60-day time period commenced from November 3, 2020, when the toll ended. Therefore, plaintiff had until January 4, 2021 to file his summary judgment motion. As such, plaintiff's cross motion for summary judgment, which was served and filed on December 9, 2020, was well within 60 days of November 3, 2020, and therefore is timely.
Labor Law § 240 (1)The court now turns to the merits of plaintiff's cross motion for partial summary judgment as to liability on his Labor Law 240 (1) claim.
Summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact exists (see Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ). The moving party is required to make a prima facie showing of entitlement to judgment as a matter of law, and evidence must be tendered in admissible form to demonstrate the absence of any material issues of fact (see Alvarez, 68 NY2d at 324 ; see also Zuckerman v City of New York , 49 NY2d 557 [1980] ). The papers submitted in the context of the summary judgment application are always viewed in the light most favorable to the party opposing the motion (see Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2d Dept 1990] ). If the initial prima facie showing has been met, the burden then shifts to the opposing party to present sufficient evidence to establish the existence of material issues of fact requiring a trial (see CPLR 3212 [b] ; see also Alvarez , 68 NY2d at 324 ; Zuckerman, 49 NY2d at 562 ). Generally, the party seeking to defeat a motion for summary judgment must tender evidence in opposition in admissible form, and "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." ( Zuckerman, 49 NY2d at 562 ).
The plaintiff, relying on his 50-h hearing and deposition testimony, argues that he is entitled to partial summary judgment as to liability on his Labor Law 240 (1) cause of action. He contends that his testimony establishes that he was injured while performing excavation related work, when a 20-foot-long steel curb fell on his foot while it was in the process of being hoisted. Plaintiff further contends that the evidence establishes that the metal chain system used to attach the curb to the backhoe failed, thereby causing the curb to fall. In addition, plaintiff claims it is undisputed that there were no straps or tag lines at the site, or other appropriate safety devices in place to prevent his injuries. Thus, plaintiff argues that defendants (the City and Bedford-Carp) violated Labor Law 240 (1) by failing to provide him with any of the enumerated devices designed to protect workers from the extraordinary dangers of being struck by a falling object while in the process of being hoisted.
In opposition, the defendants argue there are substantive discrepancies in plaintiff's testimony as compared to the testimony of his Tiki foreman, Costa, which raise issues of fact precluding summary judgment in plaintiff's favor. In this regard, defendants note that the plaintiff's version of the events leading up to the incident are directly contradicted by Costa's testimony. For instance, plaintiff's testimony that Costa instructed him to transport the curb segments is contradicted by Costa's testimony that he never assigned the plaintiff to do this work, but instead directed him to shovel dirt up against the form work. In addition, plaintiff testified that Costa showed him how to transport the steel curb. Costa, however, testified that he never trained the plaintiff on how to move the curb segments utilizing a metal chain as he did not assign the plaintiff to do such work. In addition, plaintiff testified that he asked Costa to give him a tag line and/or four-point straps to move the curb, and that Costa looked but could not find any at the site. Costa, however, testified that the plaintiff never asked him for any of these items. Based upon the forgoing conflicting testimony, defendants argue that triable issues of fact have been raised as to the plaintiff's credibility. Since plaintiff is the only witness to his accident, defendants argue that summary judgment in plaintiff's favor should be denied.
Defendants further argue that issues of fact exist as to whether the plaintiff was the sole proximate cause of his accident since he chose to move the steel curb on his own and was not instructed by Costa to do so. In addition, defendants argue that plaintiff's injuries were caused by his use and/or misuse of the available safety device (the chain system). In this regard, defendants point out that Costa testified that he was brought to the site on the day in question because of his experience in the installation of steel curbs, and that he never had any problems hoisting the curb pieces by using the chain and hook device that plaintiff alleges was deficient.
Labor Law § 240 (1) "imposes absolute liability on building owners and contractor's whose failure to ‘provide proper protection to workers employed on a construction site’ proximately causes injury to a worker" ( Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011], quoting Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490 [1995] ; see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662 [2014] ; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991] ). The statute is intended to provide "extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks" ( Nicometi v Vineyards of Fredonia, LLC , 25 NY3d 90, 96-97 [2015] [internal quotation marks, brackets and citations omitted]).
"In order to prevail on summary judgment in a section 240 (1) ‘falling object’ case, the injured worker must demonstrate the existence of a hazard contemplated under that statute ‘and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein’ " ( Fabrizi, 22 NY3d at 662, quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001] ; Mendez v Jackson Dev. Group, Ltd. , 99 AD3d 677, 678 [2d Dept 2012] ). "Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking" ( Fabrizi, 22 NY3d at 662—663 [citations and internal quotation marks omitted]; see Gabrus v New York City Hous. Auth. , 105 AD3d 699, 700 [2d Dept 2013] ). "To succeed on a cause of action pursuant to Labor Law § 240 (1), the plaintiff must establish that an owner or contractor failed to provide appropriate safety devices at an elevated work site and that such violation of the statute was the proximate cause of his injuries" ( Ramsey v Leon D. DeMatteis Constr. Corp. , 79 AD3d 720, 722 [2d Dept 2010] ).
Here, the court finds that the plaintiff has established his entitlement to judgment, as a matter of law, under Labor Law § 240 (1) by showing that he was struck by a falling object that was improperly hoisted or inadequately secured, which was a proximate cause of his injuries (see Gabrus 105 AD3d at 700 [plaintiff entitled to summary judgment on his Labor Law § 240 (1) claim where he demonstrated that the load of material that fell on him while being hoisted to the top of the building was inadequately secured]; Zengotita v JFK Intl. Air Term., LLC, 67 AD3d 426 [1st Dept 2009] ). It is clear that the steel curb being transported was "a load that required securing for the purpose of the undertaking at the time it fell" ( Narducci , 96 NY2d at 268 ). Further, it is undisputed that the plaintiff was injured when the chain system securing the curb failed, thereby causing the curb to fall on his foot.
Contrary to defendants’ contention, the conflicting testimony of plaintiff and his foreman, Costa, regarding whether the latter instructed plaintiff to assist in transporting the curb, and the manner in which to secure it to the backhoe for hoisting, or whether the plaintiff requested straps/tag lines to perform the work, does not preclude summary judgment in plaintiff's favor. Although a motion for summary judgment should not be granted where the facts are in dispute, the dispute "must relate to material issues " ( Leconte v 80 E. End Owners Corp., 80 AD3d 669, 671 [2d Dept 2011], quoting Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312 [2004] ). The conflicting testimony at issue herein does not raise an issue of fact as to the plaintiff's credibility sufficient to defeat plaintiff's prima facie showing of entitlement to summary judgment since such testimony is irrelevant "to the dispositive issue of whether defendants provided plaintiff with proper protection under the statute" (see Ortiz v Burke Ave. Realty, Inc. , 126 AD3d 577, 578 [1st Dept 2015] ). While Costa's recollection of the sequence of events leading up to the plaintiff's incident differ from the plaintiff's, such discrepancies fail to raise a triable issue of fact as to whether the defendants violated Labor Law § 240 (1) by failing to provide the plaintiff with an adequate safety device to protect him from falling objects in the process of being hoisted (see Leconte, 80 AD3d at 671 ; Ernish v City of New York , 2 AD3d 256, 257 [1st Dept 2003] ; Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592 [1st Dept 2010] [plaintiff and his foreman's conflicting versions of the accident did not preclude summary judgment in plaintiff's favor on his section 240 (1) claim where the statute was violated under either version of the accident]). Moreover, the court notes that the defendants fail to contest plaintiff's account of how the accident occurred (see Singh v City of New York , 191 AD3d 547 [1st Dept 2021] ; Leconte, 80 AD3d at 671 ).
Furthermore, it is undisputed that Costa did not witness the plaintiff's accident (Costa tr at 24, lines 23-24). During his deposition, Costa admitted that Tiki's principal, Privatere, could have given the plaintiff instructions to help transport the curbs that day in order to make sure the work was done efficiently (id. at 71). Although Costa claims he never instructed the plaintiff on how to transport the steel faced curbs with the chain, he testified that he believed the plaintiff may have observed him doing it in this manner (id. at 40, lines 11-23). Thus, Costa's deposition testimony does not raise a triable issue of fact as to any material issue (see Carrion v City of New York , 111 AD3d 872, 874 [2d Dept 2013] ). Although plaintiff was the sole witness to the accident, the defendants have failed to raise a bona fide issue regarding his credibility so as to preclude an award of partial summary judgment as to liability in plaintiff's favor ( Leconte, 80 AD3d at 671 ; see also Klein v City of New York, 89 NY2d at 834–835, 652 [1996] ; Barr v 157 5 Ave., LLC, 60 AD3d 796, 797 [2d Dept 2009] ; Rivera v Dafna Constr. Co., Ltd., 27 AD3d 545 [2d Dept 2006] ).
Nor does the record support defendants’ contention that plaintiff was the sole proximate cause of his accident due to his negligent use and/or misuse of the available safety device (the chain system attached to the backhoe). The sole proximate cause defense generally applies where the worker misused, removed, or failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] ). "To raise a triable issue of fact as to whether a plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate devices were available, that the plaintiff knew that they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained" ( Nacewicz v Roman Cath. Church of the Holy Cross, 105 AD3d 402, 402-403 [1st Dept 2013], citing Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004] ; see Robinson v Bond St. Levy , LLC, 115 AD3d 928, 929 [2d Dept 2014] ). Here, the record establishes that a violation of Labor Law § 240 (1) was a proximate cause of plaintiff's accident as plaintiff's injuries were caused, at least in part, by the fact that the chain system utilized in hoisting the curb failed. Further, there is no evidence that plaintiff disregarded an instruction to use any particular safety device. In fact, Costa admitted during his deposition that no tag lines were used on the day of the accident, and that he did not remember seeing any at the site (Costa tr at 36, lines 22-25, 37, lines 16-18). Indeed, any comparative negligence on plaintiff's part is no defense to his Labor Law § 240 (1) claim (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 [2003] ).
Accordingly, plaintiff's cross motion seeking partial summary judgment as to liability on his Labor Law 240 (1) cause of action is granted as against the City and Bedford-Carp.
Summary Judgment Motions by The City and Bedford-Carp
In their respective motions, the City and Bedford-Carp both seek summary judgment dismissing plaintiff's Labor Law 241 (6), 200, and common-law negligence claims.
Labor Law § 241 (6)As to Labor Law § 241 (6), this section imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control (see Romero v J & S Simcha, Inc. , 39 AD3d 838 [2d Dept 2007] ). In order to prevail under Labor Law § 241 (6), a plaintiff must establish that specific safety rules and regulations of the Industrial Code promulgated by the Commissioner of the Department of Labor were violated (see Ross v Curtis—Palmer Hydro—Elec. Co. , 81 NY2d 494 [1993] ; Ares v State of New York, 80 NY2d 959 [1992] ). The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the facts of the case (see Kwang Ho Kim v D & W Shin Realty Corp. , 47 AD3d 616, 619 [2d Dept 2008] ; Jicheng Liu v Sanford Tower Condominium, Inc., 35 AD3d 378, 379 [2d Dept 2006] ).
Here, plaintiff's verified bill of particulars alleges that the defendants violated various Industrial Code sections including 12 NYCRR 23-1.5, 23-2.3 (c), 23-4.2 (k), 23-6.1, 23-6.1 (d) and (h), 23-6.2 (d), 23-9.2 (c). In their respective motions, the City and Bedford-Carp argue that the plaintiff's 241 (6) claim should be dismissed as the above-referenced regulations are either inapplicable or were not violated here. In opposition, the plaintiff concedes that Industrial Code sections 23-1.5, 23-6.1, 23-6.1 (d) and (h), 23-6.2 (d) and 23-9.2 (c) cannot support his Labor Law 241 (6) claim, but maintains that said claim is properly predicated upon sections 23-2.3 (c) and 23-4.2 (k). Defendants are therefore entitled to summary judgment dismissing plaintiff's Labor Law 241 (6) claim to the extent it is premised on sections 23-1.5, 23-6.1, 23-6.1 (d) and (h), 23-6.2 (d) and 23-9.2 (c).
The court now turns to the applicability of Industrial Code sections 23-2.3 (c) and 23-4.2 (k). As to section 23-2.3 (c), that regulation requires the use of tag lines "[w]hile steel panels or structural steel members are being hoisted ... to prevent uncontrolled movement of such panels or members" ( 12 NYCRR 23—2.3 [c]). The context of the entire section indicates that it pertains to safety measures to be taken when work involves the erection, placement, and assembly of structural steel. As an initial matter, the court notes that section 23-2.3 (c) is sufficiently specific to support a Labor Law 241 (6) cause of action (see Cruz v Neil Hospitality, LLC , 50 AD3d 619, 621 [2d Dept 2008] ; see also, Macgregor v Mrmd Ny Corp. , 194 AD3d 550 [1st Dept 2021] ; Sebring v Wheatfield Props. Co. , 255 AD2d 927, 929 [4th Dept 1998] ).
Defendants argue that this provision is not applicable herein because the steel curb at issue cannot be deemed a "steel panel or a structural steel member" within the meaning of section 23-2.3 (c). In this regard, defendants contend this provision is limited to situations related to the steel framing of buildings or bridges only, and therefore does not apply to the placement of steel curbs for the City's sidewalk restoration project.
Although the Industrial Code definitions section, NYCRR § 23-1.4, does not contain a definition of the phrase "structural steel members," defendants have failed to establish, as a matter of law, that section 23-2.3, which is entitled "Structural Steel Assembly" only pertains to steel members that are used specifically in the framing of buildings or bridges. Nor have defendants made a prima facie showing that the 20-foot-long steel curb at issue, weighing approximately 500 pounds, which was to be installed in the excavated sidewalk, was not a "structural steel member" within the purview of section 23-2.3 (c). Defendants’ reliance on Lombardi v City (175 AD3d 1521 [2d Dept 2019] ) is misplaced. In Lombardi , the plaintiff was injured when a metal plate used to cover an excavated trench in a roadway struck him while it was being removed from the roadway. Although the Second Department held that section 23-2.3 (c) was inapplicable, contrary to defendants’ assertion, it was never determined that the metal plate did not constitute a structural steel panel or member within the meaning of the regulation. The court notes that a review of Lombardi's underlying facts reveals that the metal plate at issue was in the process of being dragged on the roadway when it injured the plaintiff, and that no hoisting was involved. Since the metal plate was not in the process of being hoisted, section 23-2.3 (c), which requires the use of tag lines "[w]hile steel panels or structural steel members are being hoisted " ( 12 NYCRR 23-2.3 [c] [emphasis added]), was clearly inapplicable to the facts set forth in Lombardi (see Cruz v Neil Hosp., LLC, 50 AD3d 619, 621 [2d Dept 2008] [ section 23-2.3 [c] not applicable where plaintiff was injured when he and five co-workers attempted to manually move a steel beam, 20-feet long and weighing approximately 800 pounds, by pushing it over a dirt mound about 15 feet high]).
Defendants’ reliance on Greenwood v Forest City Ratner Cos., LLC (2020 NY Slip Op 30037[U] [New York County Sup. Ct.] ) is also misplaced as that case involved the hoisting of an apartment modular unit in which the court held that section 23-2.3 (c) was not applicable to the facts therein. The City fails to establish how the modular unit in Greenwood is comparable or otherwise analogous to the 20-foot steel curb at issue in the present case.
Here, the plaintiff has presented evidence that he was injured when there was uncontrolled movement of the steel curb just before it slipped out of the chain and fell on his foot. Further, the steel curb was to be used to permanently support the structural integrity of the sidewalk. Inasmuch as defendants have failed to demonstrate, prima facie , that this section was factually inapplicable to this case, or that the alleged violation of this provision was not a proximate cause of the plaintiff's injuries, that branch of their respective motions seeking to dismiss plaintiff's Labor Law 241 (6) claim insofar as based upon section 23-2.3 (c) is denied (see Cardenas v BBM Const. Corp., 133 AD3d 626, 628 [2d Dept 2015] ; Treu v Cappelletti, 71 AD3d 994, 998 [2d Dept 2010] ; Osorio v Kenart Realty, Inc., 35 AD3d 561, 562—563 [2d Dept 2006] ).
Next, section 23-4.2 (k) provides that "[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment." Defendants contend that this regulation is inapplicable because the location where the injury occurred was not an excavation or trench as defined in the provision which is entitled "Trench and Area Type Excavations." Defendants further contend that section 23-4.2 (k) is inapplicable because the material being moved at the time of the plaintiff's incident was not material from an excavation but rather a curb being placed for a concrete pour of the sidewalk.
The court notes that this provision is sufficiently specific to support a claim under Labor Law § 241(6) (see Zaino v Rogers , 153 AD3d 763, 765 [2d Dept 2017] ; Cunha v Crossroads II, 131 AD3d 440, 441 [2d Dept 2015] ; Ferreira v City of New York , 85 AD3d 1103, 1105 [2d Dept 2011] ; Garcia v Silver Oak USA , 298 AD2d 555 [2d Dept 2002] ). The court rejects defendants’ contention that this provision does not apply to a roadway or sidewalk restoration project. The Second Department has held that "[ section 23-4.2 (k) ] applies to persons ... working in ‘any area where they may be struck or endangered by any excavation equipment,’ " ( Ferreira v City of New York , 85 AD3d 1103, 1106 [2d Dept 2011] ). In Ferreira, the court found that section 23-4.2 (k) was applicable where the plaintiff, who was part of a crew that was installing new pedestrian ramps at street corners, was fatally injured when he was pinned against a flatbed truck by the outrigger of a backhoe. In addition, in Zaino v Rodgers (153 AD3d 763 ), the Second Department held that section 23-4.2 (k) was applicable where the plaintiff's injury occurred within the context of the excavation and replacement of a residential driveway ( id. at 765 ).
While the court recognizes that the Appellate Divisions of the First, Third and Fourth Departments have all held that Industrial Code § 23-4.2 (k) is not sufficiently specific and concrete to support a cause of action under Labor Law § 241 (6) (see Malvestuto v Town of Lancaster , 201 AD3d 1339 [4th Dept 2022] ; Vanderwall v 1255 Portland Ave. LLC , 128 AD3d 1446, 1447 [4th Dept. 2015] ; Kropp v Town of Shandaken , 91 AD3d 1087, 1091 [3rd Dept 2012] ; Sparendam v Lehr Constr. Corp. 24 AD3d 388, 389 [1st Dept 2005] ), this court is bound to follow the controlling authority of the Appellate Division, Second Department (see Mountain View Coach Lines v Storm , 102 AD2d 663, 664 [2d Dep 1984] ).
In the present case, the backhoe involved in plaintiff's accident had been used to excavate trenches and transport the curbs to the areas where they were going to be installed. Under these circumstances, the backhoe is clearly an excavating machine within the meaning of section 23-4.2 (k) (see Ferreira, 85 AD3d 1103 [plaintiff injured by a backhoe]; Benevento v City of Buffalo, 74 AD3d 1738 [4th Dept. 2010] [plaintiff injured when bucket of a backhoe near where he was standing struck him]; Malloy v Madison Forty-Five Co., 13 AD3d 55 [1st Dept. 2004] [backhoe involved in plaintiff's accident deemed excavating machine]). Inasmuch as section 23-4.2 (k) applies to persons, such as the plaintiff, working in an "area where [he] may be struck or endangered by ... any material ... falling from such [excavation] equipment," the court finds that this provision is applicable to the facts of this case ( 12 NYCRR 23-4.2 [k]).
Accordingly, those branches of defendants’ motions seeking to dismiss plaintiff's Labor Law 241 (6) claim as based upon section 23-4.2 (k) are denied.
Labor Law § 200 and Common-Law Negligence
The City and Bedford-Carp both seek summary judgment dismissing plaintiff's Labor Law 200 and common-law negligence claims against them. Labor Law 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work (see Comes v New York State Elec. & Gas Corp. , 82 NY2d 876, 877 [1993] ; Ross v Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 501-502 [1993] ). "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have ‘authority to exercise supervision and control over the work’ " ( Rojas v Schwartz , 74 AD3d 1046, 1046 [2d Dept 2010] quoting Gallello v MARJ Distribs., Inc. , 50 AD3d 734, 735 [2008] ; see Chowdhury v Rodriguez , 57 AD3d 121, 127-128 [2d Dept 2008] ).
As to the City and Bedford-Carp, the court finds that both defendants have established, prima facie , that they lacked the authority to supervise or control the means and methods of the plaintiff's work (see Chowdhury v Rodriguez , 57 AD3d 121, 132 [2008] ). In opposition, the plaintiff does not oppose the dismissal of his Labor Law § 200/common-law negligence claims against defendants and, in fact, concedes that based upon facts learned in the course of discovery, these claims cannot be legally and factually supported (NYSCEF Doc No. 121, at pg. 7, ¶ 6). Accordingly, plaintiff's Labor Law 200 and common-law negligence claims are dismissed as against the City and Bedford-Carp.
The City's Contractual Indemnification Cross Claim Against Bedford-Carp
The City seeks summary judgment on its contractual indemnity cross claim against Bedford-Carp. This claim is based upon the indemnification provision in the City-Bedford Contract, which provides as follows:
To the fullest extent permitted by law, the Contractor [Bedford-Carp] shall defend, indemnify, and hold the City, its employees, and officials (the "Indemnitees") harmless against any and all claims ... allegedly arising out of or in any way related to the operations of the Contractor and/or its Subcontractors in the performance of this Contract or from the Contractor's and all its Subcontractors’ failure to comply with any of the provisions of this Contract or of the Law. Such costs and expenses shall include all those incurred in defending the underlying claim and those incurred in connection with the enforcement of this Article 7.4 by way of crossclaim, third-party claim, declaratory action or otherwise. The parties expressly agree that the indemnification obligation hereunder contemplates (1) full indemnity in the event of liability imposed against the Indemnitees without negligence and solely by reason of statute, operation of Law or otherwise;
(NYSCEF Doc No. 79, City-Bedford Contract, Section 7.4, at pg. 12 of the contract [emphasis added]).
The City argues that there is no evidence that it was in any way negligent or at fault in the happening of the plaintiff's accident, and that any liability would be entirely vicarious under the Labor Law. It further argues that the indemnity provision has been triggered in that the injuries sustained by the plaintiff arose out of the work the City contracted Bedford-Carp to perform, which Bedford-Carp, in turn, contracted Tiki to perform. While the City concedes that it is currently being afforded a defense under the primary policy of insurance issued to Bedford-Carp, which affords $6 million in coverage, it notes that the City-Bedford-Carp contract also provided for excess insurance coverage. As such, the City argues that it is entitled to full contractual indemnity as against Bedford-Carp.
Bedford-Carp was issued a policy of insurance from James River Insurance Company under Policy Number 00069963-0 for the policy period January 20, 2016 through January 20, 2020. Said policy has liability limits of 6,000,000 per occurrence and $6,000,000 in the general aggregate.
In opposition, Bedford-Carp does not dispute that the indemnity provision has been triggered. Instead, acknowledging that the City is currently being defended under the James River insurance policy that Bedford-Carp obtained for itself, Bedford-Carp argues that the anti-subrogation rule bars the City's contractual indemnification claim against it up to the limits of the policy. Bedford-Carp contends the City's contractual indemnification claim is effectively an attempt by the insurer (James River) to seek indemnification from its own insured, which runs afoul of the anti-subrogation rule.
Although a copy of the James River insurance policy has not been submitted herein, the court notes that the City, in its reply, does not dispute that it and Bedford-Carp are both insured under the same policy for the same risk.
"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 Co. , 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co. , 32 NY2d 149, 153 [1973] ; see also Tonking v Port Auth. of NY & N.J. , 3 NY3d 486, 490 [2004] ). "[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" ( Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept 2009] ; see Baillargeon v Kings Cty. Waterproofing Corp., 91 AD3d 686, 688 [2d Dept 2012] ; Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 808 [2d Dept 2009] ).
In addition, the anti-subrogation rule provides that an insurance company cannot recover from its own insured for the very risk for which the insured was covered (see North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281 [1993] ; Storms v Dominican Coll. of Blauvelt , 308 AD2d 575, 577 [2d Dept 2003] ; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709, 713 [2d Dept 2000] ; see also Pitruzello v Gelco Bldrs., 304 AD2d 302, 303 [1st Dept 2003] ). Moreover, "[t]he anti-subrogation rule is implicated by an insurer's duty to defend as well as its duty to indemnify" ( Pitruzello v Gelco Bldrs., 304 AD2d at 304 ).
The court finds that the City has made a prima facie showing that it did not have any involvement with the day-to-day activities on site; nor did it direct, supervise, or control the plaintiff's activities. Moreover, the plaintiff's accident clearly arose out of the performance of the work the City contracted Bedford-Carp to perform, which Bedford-Carp had retained plaintiff's employer, Tiki, to perform. As such, the indemnity provision was triggered. However, since the City and Bedford-Carp are both insured for the same risk by the same insurer (James River), the anti-subrogation rule applies (see Yong Ju Kim v Herbert Constr. Co., 275 AD2d at 713 ; Washington v New York City Indus. Dev. Agency, 215 AD2d 297 [1995] ). Therefore, the City's third-party contractual indemnification claim against Bedford-Carp is barred by the anti-subrogation rule, but only to the extent that any verdict or settlement in favor of plaintiff is within the limit of the subject policy ($6,000,000) (see Blanco v CVS Corp., 18 AD3d 685,686 [2d Dept 2005] ; Storms v Dominican Coll. of Blauvelt, 308 AD2d 575, 577 [2d Dept 2003] ; Yong Ju Kim, 275 AD2d at 713 ).
Furthermore, granting summary judgment in the City's favor would presently be premature as this court cannot predetermine whether (and to what extent) James River insurance "will be called upon to fund any judgment or settlement" ( Estate of Aprea v Willets Point Contr. Corp., 215 AD2d 708, 709 [2d Dept 1995] ; see Aguilar v Graham Terrace, LLC , 186 AD3d 1298, 1302 [ 2d Dept 2020] ).
Aptim's Motion
Aptim moves (mot. seq. no. 6) for an order, pursuant to CPLR 3211 (a) (1) and/or CPLR 3211(a) (7), dismissing the City's second third-party action against it, which asserts causes of action for common-law indemnification, negligence, contractual indemnification, and breach of contract. In the alternative, Aptim also moves for an order, pursuant to CPLR 603, severing the second third-party action due to prejudice, and for an order, pursuant to CPLR 501 and 510 (1), transferring venue of the action to New York County.
At the outset, the court will address that branch of Aptim's motion seeking to transfer venue of the second third-party action to New York County, which is based upon a forum selection clause set forth in the contract the City entered into with Aptim (the City-Aptim Contract). Section 12.02 of the Contract, entitled "Jurisdiction and Venue," provides as follows:
The parties agree that any and all claims asserted by or against the City arising under or related to this Agreement shall solely be heard and determined either in the courts of the United States located in the City or in the courts of the State located in the City and County of New York. The parties shall consent to the dismissal and/or transfer of any claims asserted in any other venue or forum to the proper venue or forum. If the Contractor initiates any action in breach of this Section, the Contractor shall be responsible for and shall promptly reimburse the City for any attorneys’ fees incurred by the City in removing the action to a proper court consistent with this Section
(NYSCEF Doc No. 110, at pg. 20 of the City-Aptim Contract [emphasis added]).
Aptim contends that the County of Kings, as originally designated by the plaintiff for the place of trial in the main action, is not the proper venue for the second third-party action because the City-Aptim Contract clearly designates New York County as the forum for any dispute between the City and Aptim.
In opposition, the City argues that the request to change venue should be denied as judicial economy would not be served by litigating both matters separately. In this regard, the City contends that many of the witnesses and evidence will be the same. In addition, the City argues that the second third-party contractual indemnity claim should not be controlling for venue purposes especially since it has asserted other claims against Aptim such as contribution, common-law negligence and common-law indemnity.
Pursuant to CPLR 501, a written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial." As a general rule, a contract's "forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court" ( Puleo v Shore View Ctr. for Rehab. & Health Care , 132 AD3d 651, 652 [2d Dept 2015] [quotation and citation omitted]; Bhonlay v Raquette Lake Camps, Inc. , 120 AD3d 1015 [1st Dept 2014] ). In other words, a strong showing is required to set aside an agreement's forum selection clause ( Horton v Concerns of Police Survivors, Inc. , 62 AD3d 836, 936 [2d Dept 2009] ). Additionally, "the applicability of a forum selection clause does not depend on the nature of the underlying action ... [r]ather, it is the language of the forum selection clause itself that determines which claims fall within its scope" ( Couvertier v Concourse Rehabilitation and Nursing, Inc., 117 AD3d 772, 773 [2d Dept 2014] ). Forum selection clauses have been found to be applicable to third-party claims in personal injury and products liability actions (see Tourtellot v Harza Architects, Engineers and Construction Managers, 55 AD3d 1096 [3d Dept 2008] ).
Here, the court finds that Aptim has made a prima facie showing that the forum selection clause in Section 12.02 of the City-Aptim Contract mandates that all claims by (and against) the City arising under or related to this Agreement shall solely be brought in New York County. The City has failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching (see Pratik Apparels, Ltd. v Shintex Apparel Grp., Inc., 96 AD3d 922, 923 [2d Dept 2012] ; Koko Contracting, Inc. v Cont'l Envtl. Asbestos Removal Corp. , 272 AD2d 585, 586 [2d Dept 2000] ). Furthermore, the court notes that indemnification is generally a "separate substantive" claim independent from the underlying action (see McDermott v City of New York , 50 NY2d 211, 218 [1980] ; Treacy v Inspired Event Prods., LLC, 65 Misc 3d 1224 ] [A], [NY Sup. Ct. 2019], aff'd, 192 AD3d 444 [1st Dept 2021] ). Thus, under these circumstances, the Court finds that New York County is the appropriate forum for determination of the issues raised by the contract between the City and Aptim (see Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d 803 [2d Dept 1978] ; see also Williams v Brooklyn Navy Yard Development Corp. , No. 501181/2015, 2018 WL 7569303, at *4 [NY Sup. Ct. July 19, 2018] ).
Accordingly, the court dismisses the City's second third-party action against Aptim because it was commenced in the wrong venue. The remainder of Aptim's motion is otherwise rendered moot.
Conclusion
Accordingly, it is hereby
ORDERED that branch of the City's motion (mot. seq. no 4) for summary judgment dismissing plaintiff's Labor Law 200 and common-law negligence claims is granted and said claims are dismissed as against the City; that branch seeking to dismiss the plaintiff's Labor Law 241 (6) claim is granted except to the extent that said claim is predicated upon Industrial Code §§ 23-2.3 (c) and 23-4.2 (k) ; the remainder of the City's motion is denied; and it is further
ORDERED that branch of Bedford-Carp's motion (mot. seq. no. 5) seeking to dismiss plaintiff's Labor Law 200 and common-law negligence claims as against it is granted; that branch seeking to dismiss plaintiff's Labor Law 241 (6) claim is granted except to the extent that said claim is predicated upon Industrial Code §§ 23-2.3 (c) and 23-4.2 (k) ; and it is further
ORDERED that Aptim's motion (mot. seq. no. 6) is granted to the extent that the second third-party complaint is hereby dismissed, without prejudice; and it is further
ORDERED that the plaintiff's cross motions (mot. seq. nos. 7 & 8) for partial summary judgment on the issue of liability on his Labor Law 240 (1) cause of action is granted.
The forgoing constitutes the decision and order of the court.