Opinion
Index No. 154864/2018 Motion Seq. No. 001
10-16-2023
CHRISTOPHER HEALY and JOYCE HEALY, Plaintiffs, v. CITIGROUP TECHNOLOGY, INC. and TISHMAN CONSTRUCTION CORPORATION, Defendants.
Unpublished Opinion
PRESENT: HON. DAVID B. COHEN, JUSTICE
DECISION + ORDER ON MOTION
DAVID B. COHEN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104 were read on this motion to/for JUDGMENT - SUMMARY.
In this Labor Law action, defendants Citigroup Technology, Inc. (Citigroup) and Tishman Construction Corporation (Tishman) (collectively, movants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint in its entirety. Third-party defendants Calvin Maintenance, Inc. (Calvin) and W5 Group LLC, doing business as Waldorf Demolition (Waldorf) (collectively, cross-movants), cross-move, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint in its entirety.
I. Factual and Procedural Background
This case arises from an incident on June 23, 2017, in which plaintiff Christopher Healy (Healy) was allegedly injured after falling down a set of stairs while working at a construction site located at 390 Greenwich Street in Manhattan (the premises), which was owned by Citigroup (NYSCEF Doc Nos. 53-54). Plaintiffs commenced this action against movants alleging claims of common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6) (Doc No. 53). Movants joined issue by their answer dated June 18, 2018, denying all substantive allegations of wrongdoing and asserting various affirmative defenses (Doc No. 53). Movants then commenced a third-party action against cross-movants asserting causes of action for, among other things, contractual and common-law indemnification (Doc No. 55), and cross-movants joined issue thereafter (Doc No. 56). Movants move for summary dismissal of the complaint in its entirety (Doc No. 49-52), which plaintiffs oppose (Doc No. 95). Cross-movants cross-move to dismiss the third-party complaint in its entirety (Doc Nos. 81-85), which movants oppose (Doc No. 98).
A. Deposition Testimony of Healy (Doc No. 65)
At his deposition, Healy testified that, on the day of the incident, he was employed by nonparty Benson Industries as a general foreman and working on the premises. While working in an office on the basement level, he was called to the second floor by one of his subordinates, another Benson employee. Upon exiting the internal stairwell onto the second floor, there was a small temporary staircase leading down to the work area. As he descended the staircase, he noticed two yellow extension cords stretched across the stairs. Although he slowed down and tried to avoid them, he tripped over the cords and fell to the ground.
Healy had been to the second floor five other times that day, and the cords were not present on the staircase when he successfully descended them roughly 90 minutes before his accident. The only cords present were laid in a pile near the side of the staircase. After his accident, he noticed that the cords were plugged into a nearby outlet and led to an area of the premises where demolition work was taking place.
Healy was shown several photographs of the staircase (Doc No. 66), which were taken by one of his subordinates shortly after the accident and sent to him via text message afterwards. Although Healy acknowledged that the staircase depicted in the photographs was the staircase upon which he fell, he stated that the cords were closer to the stairs than they appeared in the photographs because they shifted once he tripped over them.
B. Deposition Testimony of Citigroup (Doc No. 67)
A senior vice president for Citigroup testified that Citigroup hired two construction managers for the project, Tishman and nonparty Turner Construction. Turner was responsible for interior construction, whereas Tishman was responsible for "core and shell construction." Benson and Waldorf were hired by Tishman to assist with its portion of the project, with Benson performing wall installation and Waldorf performing demolition.
C. Deposition Testimony of Tishman (Doc No. 69)
A vice president testified on behalf of Tishman and confirmed Citigroup's testimony that it hired Tishman and Turner as construction managers, and that Tishman hired Benson and Waldorf. As part of its work on the project, Tishman maintained daily reports about the work being performed on a given date, and it completed an incident report after Healy's accident.
D. Tishman Incident Report (Doc No. 71)
On the date of Healy's accident, Tishman completed an incident report which confirmed Healy's testimony that he was injured after tripping over cords at the bottom of some stairs on the second floor of the premises.
E. Tishman Daily Work Reports (Doc No. 73)
Tishman's daily work report for the date of Healy's accident indicated that numerous subcontractors performed work in various areas of the premises on that date. It identified Waldorf explicitly and provided that Waldorf performed "duct work" on the second floor of the premises that day.
D. Deposition Testimony of Waldorf (Doc No. 74)
A project manager employed by Waldorf explained that Waldorf was hired by Tishman, and only Tishman, as a subcontractor to perform demolition of the first and second floors of the premises. Demolition was completed roughly two weeks prior to Healy's accident, although Waldorf was still working in other areas of the premises afterwards. Waldorf then removed all of its materials, equipment, and tools from the second floor because it had to turn over the area to Turner so Turner could begin its work. He testified that Waldorf did not perform any work on the second floor on the date of Healy's accident, which contradicted the information in Tishman's daily report that Waldorf performed duct work on the second floor on that date.
When shown photographs of the cords upon which plaintiff tripped, he stated that Waldorf did use yellow electrical cords like the ones in the photographs, but said the cords did not belong to Waldorf. The box next to the cords also did not belong to Waldorf because it did not have Waldorf's name on it.
E. Deposition Testimony o f Turner (Doc No. 75)
A project superintendent for Turner testified that it began its work on the second floor while Tishman was still performing demolition work, and that Tishman did not complete demolition until roughly November or December 2017. Waldorf was also performing demolition work when Turner began its work on the second floor.
II. Legal Analysis and Conclusions
A. Movants 'Motion for Summary Judgment
Before moving to the analysis, it bears mentioning that plaintiffs withdrew their Labor Law § 240(1) claim and their Labor Law § 241(6) claims predicated on 12 NYCRR 23-1.5, 1.7(d), 1.7(e)(2), 1.7(f), and 2.7 (Doc No. 95 at 2). Therefore, the only claims that need addressed are plaintiffs' common-law negligence claim, their Labor Law § 200 claim, and their Labor Law § 241(6) claims predicated on 12 NYCRR 1.7(e)(1) and 2.1(a).
i. Plaintiffs' Labor Law § 241(6) Claim
a. Industrial Code § 23-1.7(e)(1)
Movants contend that they are entitled to judgment as a matter of law on this Labor Law § 241(6) claim because the cords upon which Healy tripped were "an integral part of the work at the job site" (Doc No. 52 at 7). Plaintiffs argue in opposition that there are triable questions of fact regarding whether the cords were integral to the work.
Here, movants have failed to make a prima facie showing that the cords were integral to the work. Although the integral to work defense "applies to things and conditions that are an integral part of the construction, not just the specific task a plaintiff may be performing at the time of the accident" (Bazdaric v Almah Partners LLC, 203 A.D.3d 643, 644 [1st Dept 2022] [internal quotation marks and citations omitted]), and may be asserted against Labor Law § 241(6) claims predicated on 12 NYCRR 23-1.7(e)(1) (see O'Sullivan v IDI Constr. Co., Inc., 7 N.Y.3d 805, 806 [2006]; Conlon v Carnegie Hall Socy., Inc., 159 A.D.3d 655, 655 [1st Dept 2018]), movants have not demonstrated that the cords were necessary to any task being performed or the construction generally.
At his deposition, Healy stated that he saw the cords plugged into a nearby electrical outlet and that they led to an area of the second floor where demolition work had previously taken place. However, he did not see if the other ends of the cords were plugged into any equipment or if they were even near any equipment in that area, and he stated that no demolition work was actively happening at the time of his accident. Therefore, it is unclear whether the cords were being used in such a manner to trigger the integral to work defense (cf. Conlon v Carnegie Hall Socy., Inc., 2016 WL 11687617, *4 [Sup Ct, Bronx County, Oct. 3, 2016, No. 24165/2013E] [dismissing Labor Law § 241(6) claim predicated on Industrial Code § 23-1.7(e)(1) "(b)ecause the power cord upon which plaintiff . . . tripped was necessary to power the tool integral to the work he was performing"], mod 159 A.D.3d 655 [1st Dept 2018] [affirming Supreme Court's dismissal of Labor Law § 241(6) claim because integral to work defense applied]).
b. Industrial Code § 23-2.1
Movants contend that they are entitled to summary dismissal of this Labor Law claim because the cords were not being stored on the second floor, but instead were actively in use. Plaintiffs do not address this contention.
Regardless of movants' contention, plaintiffs' claim predicated on 12 NYCRR 23-2.1, must be deemed abandoned "since [they] failed to specify any particular subsections and subdivisions of the[] provision[]" (McLean v Tishman Constr. Corp., 144 A.D.3d 534, 535 [1st Dept 2016] [parentheses omitted] [dismissing plaintiffs Labor Law § 241(6) claims because he failed to identify specific subsections of enumerated provisions]). In their complaint and bill of particulars, plaintiffs only referenced Industrial Code § 23-2.1 (Doc No. 53 at 4; Doc No. 59 at 23, 6), they failed to specify whether movants violated subsection (a) and its requirements for safe and orderly storage of material and equipment, or subsection (b), which pertains to disposal of debris (12 NYCRR 23-2.1 [a], [b]). Therefore, plaintiffs' Labor Law § 241(6) claim predicated on 12 NYCRR 23-2.1 must be dismissed (see Caminiti v Extell W. 57th St. LLC, 166 A.D.3d 440, 441 [ 1 st Dept 2018] [dismissing Labor Law § 241 (6) claim predicated on Industrial Code § 23-2.1 because plaintiff failed to specify a subsection of the code]).
ii. Plaintiffs' Common-Law Negligence and Labor Law § 200 Claims
Movants contend that they are entitled to summary dismissal because they have made a prima facie showing that they neither created the allegedly dangerous condition posed by the cords, nor did they have actual or constructive notice of such condition. With respect to constructive notice, they maintain that the condition did not exist for long enough to allow them to find such cords and remedy them. Plaintiffs fails to address movants' contentions.
Here, movants fail to satisfy their burden in two ways. First, to the extent that they argue that they lacked constructive notice because there is no evidence of how long the cords were plugged in prior to Healy's accident, that absence of evidence hinders their argument. As the moving party, movants bore the burden of affirmatively demonstrating that the cords did not "exist for a sufficient length of time prior to the accident to permit [their] employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838 [1986]). However, if it is unclear how long the cords were plugged in, then movants cannot establish that the cords were present for an insufficient length of time, and therefore, that they lacked constructive notice. Healy's testimony that the cords were not present roughly 90 minutes before his accident is the best evidence of how long the cords may have been present, and a period of one hour is sufficient to provide a defendant with constructive notice (see Ride v Roman Catholic Diocese of Rockville Ctr., 51 A.D.3d 1000, 1001 [2d Dept 2008] [finding no constructive notice where condition existed for "approximately one hour" before plaintiffs accident]).
Second, "[i]n the absence of evidence as to the last time the [staircase] was cleaned or inspected before the accident, [movants] fail[] to demonstrate that they lacked constructive notice of the dangerous condition that allegedly caused [Healy's] injury" (Ohadi v Magnetic Constr. Group Corp., 182 A.D.3d 474, 476 [1st Dept 2020]). Therefore, they are not entitled to judgment as a matter of law on plaintiffs' Labor Law § 200 and common-law negligence claims (see id., Pereira v New Sch., 148 A.D.3d 410, 412-413 [1st Dept 2017] [denying summary dismissal of plaintiffs common-law negligence and Labor Law § 200 claims because defendant submitted "no evidence of the cleaning schedule for the work site or when the site had last been inspected before the accident"]).
B. Cross-Movants' Cross-Motion for Summary Judgment
Cross-movants contend that they are entitled to summary dismissal of the third-party complaint in its entirety because they have demonstrated that they were not negligent and that any alleged negligence was not the proximate cause of Healy's accident.
However, questions of fact remain regarding their conduct on the date of Healy's accident. Although Waldorf's project manager testified that Waldorf completed demolition work on the second floor two weeks before Healy's accident and was not working on that floor on the date of Healy's accident, such testimony is contradicted by the testimony of Turner's project superintendent and Tishman's daily work reports. Tishman's superintendent testified that Waldorf performed demolition work on the second floor until November or December 2017, which is well beyond the early June date provided by Waldorf's project manager. The Tishman daily work logs also indicate that Waldorf performed duct work on the second floor on June 23, 2017, the date of Healy's accident.
Waldorf s project manager also stated that Waldorf used the same type of cords over which Healy tripped. Although he could not confirm whether Waldorf used the actual cords over which Healy tripped, the evidence that Waldorf used such cords and was performing work on the second floor at the time of Healy's accident demonstrate that questions of fact exist regarding Waldorf's negligence.
Therefore, cross-movants are not entitled to dismissal of the third-party complaint (see Ellis v JPMorgan Chase Bank N.A., 213 A.D.3d 486, 487 [1st Dept 2023] [denying summary dismissal of common-law and contractual indemnification cross-claims because friable issues of fact existed concerning defendant's negligence]; Boulukos v 213 P.A.S., 7 A.D.3d 346, 346 [1st Dept 2004] [same regarding questions of fact concerning third-party defendant's negligence], Iv denied 6 N.Y.3d 710 [2006]).
Accordingly, it is hereby:
ORDERED that the motion by defendants Citigroup Technology, Inc. and Tishman Construction Corporation seeking summary judgment dismissing the complaint in its entirety is decided as follows:
(1) motion denied as moot as to plaintiffs' Labor Law § 240(1) claim and plaintiffs' Labor Law § 241(6) claims predicated on 12 NYCRR 23-1.5, 1.7(d), 1.7(e)(2), 1.7(f), and 2.7;
(2) motion denied as to plaintiffs' Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.7(e)(1);
(3) motion granted as to plaintiffs' Labor Law § 241(6) claim predicated on 12 NYCRR 23-2.1;
(4) motion denied as to plaintiffs' common-law negligence and Labor Law § 200 claims; and it is further
ORDERED that the cross-motion by third-party defendants Calvin Maintenance Inc. and W5 Group LLC, doing business as Waldorf Demolition, is denied; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly; and it is further
ORDERED that counsel for defendants Citigroup Technology, Inc. and Tishman Construction Corporation shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B), and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Case (accessible at the "EFiling" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that the parties are to appear for a settlement/trial scheduling conference in person at 71 Thomas Street, Room 305, on March 27, 2024, at 9:30 a.m.