Summary
In McKee v. Holt Constr. Corp., 59 Misc.3d 1234(A), 109 N.Y.S.3d 568 (N.Y. Sup. Ct. 2018), the plaintiffs foot fell in a hole.
Summary of this case from Milligan v. 606 W. 57, LLCOpinion
700996/15
06-12-2018
Craig MCKEE, Plaintiff, v. HOLT CONSTRUCTION CORP., Terminal One Management, Inc., Port Authority of New York & New Jersey, T. Moriarty & Son, Inc., and URS Corporation—New York, Defendants.
The following numbered papers read on this motion (Seq.No.6) by defendant/third-party plaintiff Holt Construction Corp. (Holt), for summary judgment pursuant to CPLR 3212, dismissing plaintiff Craig McKee's (plaintiff) causes of action brought under Labor Law §§ 200, 240 (1), 241 (6), and for common-law negligence, for summary judgment on Holt's claims for contractual indemnification, breach of contract for failure to procure insurance and for attorney's fees against third-party defendant/second third-party defendant Cord Contracting Co., Inc. (Cord), for summary judgment on Holt's claims for common-law indemnification against defendant/third-party defendant T. Moriarty & Son, Inc. (T. Moriarty), defendant/third-party defendant URS Corporation—New York (URS), defendant/second third-party plaintiff Port Authority of New York and New Jersey (Port Authority), and/or defendant/second third-party plaintiff Terminal One Management, Inc. (Terminal One), and for summary judgment dismissing all counter claims and cross claims against Holt; by separate notice of motion (Seq.# 7) by T. Moriarty and URS for summary judgment pursuant to CPLR 3212, dismissing plaintiff's complaint and dismissing the third-party action and cross claims; by notice of cross motion by Cord for summary judgment pursuant to CPLR 3212, dismissing Holt's first, second, third and fourth third-party causes of action; and by notice of cross motion by Port Authority and Terminal One for summary judgment pursuant to CPLR 3212, dismissing plaintiff's causes of action brought under Labor Law §§ 240 and 241, and granting Port Authority and Terminal One summary judgment on their contractual defense and indemnification claims against Cord.
Papers/E–File Numbered
Seq# 6 Notice of Motion—Affidavits—Exhibits 110–144,
Seq# 7 Notice of Motion—Affidavits—Exhibits 154–181
Notice of Cross Motion—Affidavits—Exhibit 150–153
Notice of Cross Motion—Affidavits—Exhibit 182
Answering Affidavits—Exhibits 145–148, 183–188, 191, 192, 201–206 213–219 190, 193–199, 221, 207–212, 220
Upon the foregoing papers it is ordered that the motions and cross motions are determined together as follows:
This is an action to recover damages for personal injuries that plaintiff allegedly sustained on August 19, 2014, on premises located at terminal one of John F. Kennedy International Airport (JFK). Plaintiff has alleged that while he was working at the subject premises he was injured due to defendants' violations of Labor Law §§ 200, 240, 241 and common-law negligence.
Port Authority was the owner of the subject premises and Terminal One allegedly oversaw all building operations of terminal one at JFK. In November 2011, Port Authority retained URS to perform the installation of bollards at all Port Authority-owned airports, including JFK. A bollard is a short, vertical post that is used to control and divert vehicular traffic. URS subsequently retained T. Moriarty to perform the bollard work at terminal one. In 2014, as part of an unrelated renovation project involving non-party Air France's airport lounge located inside of terminal one, Air France retained Holt to act at the general contractor of the work. Holt subsequently hired Cord to perform certain millwork at the premises. Plaintiff was an employee of Cord at the time of the subject accident.
In a so-ordered stipulation dated July 27, 2017, and filed on August 1, 2017, this court provided that motions for summary judgment shall be made returnable no later than December 5, 2017. Inasmuch as the cross motions by Cord, Port Authority and Terminal One have been made returnable beyond this deadline, these cross motions are untimely. While a motion for summary judgment may be untimely, a trial court may consider it for "good cause shown" ( CPLR 3212 [a]; see Armentano v. Broadway Mall Props., Inc. , 48 AD3d 493, 494 [2d Dept 2008] ). Good cause has been defined as "a satisfactory explanation for the untimeliness" ( Brill v. City of New York , 2 NY3d 648, 652 [2004] ).
Cord, Port Authority and Terminal One have failed to provide satisfactory explanations for their untimeliness. However, to the limited extent that certain issues raised in Cord's, Port Authority's and Terminal One's untimely cross motions are on nearly identical issues already before the court on branches of Holt's, T. Moriarty's and URS's timely motions for summary judgment, the court will consider only those merits of the cross motions (see Ellman v. Village of Rhinebeck , 41 AD3d 635, 636 [2d Dept 2007] ; Grande v. Peteroy , 39 AD3d 590, 591–592 [2d Dept 2007] ).
Now, the court will turn to the branches of Holt's motion for, among other things, summary judgment dismissing plaintiff's causes of action brought under Labor Law §§ 200, 240 (1), 241 (6), and for common-law negligence, the branches of the motion by T. Moriarty and URS for summary judgment dismissing plaintiff's complaint, and the branches of Port Authority's and Terminal One's cross motion for summary judgment dismissing only plaintiff's causes of action brought under Labor Law §§ 240 and 241. On a motion for summary judgment, a movant has the initial burden of demonstrating the absence of any material issues of fact (see Smalls v. AJI Indus., Inc. , 10 NY3d 733, 735 [2008] ; Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1984] ). The court will first address plaintiff's cause of action brought under Labor Law § 240 (1).
Labor Law § 240 (1)Labor Law § 240 (1) provides that:
"[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The scaffold law imposes absolute liability upon owners, contractors, and their agents for their failure to provide workers with safety devices that properly protect workers against elevation-related hazards (see Bin Gu v. Palm Beach Tan, Inc. , 81 AD3d 867, 868 [2d Dept 2011] ; Wong v. City of New York , 65 AD3d 1000, 1001 [2d Dept 2009] ). Holt, Port Authority and Terminal One have argued that the protections of Labor Law § 240 (1) are not applicable in this matter since plaintiff did not fall from a height within the contemplation of the statute.
Holt, Port Authority and Terminal One have relied upon, among other things, plaintiff's deposition testimony. Plaintiff's testified that, on the date of the subject accident, he was carrying a wooden floor panel that weighed approximately 150 pounds, which panel was to be installed inside terminal one, as part of the Air France lounge renovation, that he was carrying the panel with a fellow employee and looking over his right shoulder when he stepped onto the piece of plywood that was covering a hole in the sidewalk in front of terminal one, which gave way under him and caused his right knee to come into contact with the ground.
Taking this evidence into consideration, Holt, Port Authority and Terminal One have satisfied their prima facie burdens on their respective motion and cross motion because they have adequately demonstrated that Labor Law § 240 (1) is inapplicable in this matter. Plaintiff has failed to oppose these branches of Holt's motion and Port Authority's and Terminal One's cross motion. No other party has raised a triable issue of fact as to this cause of action. Therefore, Holt, Port Authority and Terminal One are entitled to summary judgment dismissing plaintiff's claim brought under Labor Law § 240 (1).
Labor Law § 200 and Common–Law Negligence
In his amended verified complaint, plaintiff has alleged causes of action under Labor Law § 200 and for common-law negligence against Holt, Port Authority and Terminal One, and a cause of action based only upon common-law negligence against T. Moriarty and URS. The court notes that Port Authority and Terminal One have not cross-moved for summary judgment as to these causes of action. Labor Law § 200 "is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" ( Ortega v. Puccia , 57 AD3d 54, 60 [2d Dept 2008] ). Labor Law claims brought under § 200 are generally brought in two possible categories, those where workers were injured as a result of dangerous or defective conditions on a work site and those involving the manner in which the work was performed ( LaGiudice v. Sleepy's Inc., 67 AD3d 969, 972 [2d Dept 2009] ; Chowdhury v. Rodriguez , 57 AD3d 121, 128 [2d Dept 2008] ).
Where a claim arises out of the methods or materials of the work, an owner or general contractor may be liable if it is shown that he or she had the authority to supervise or control the work (see LaGiudice v. Sleepy's Inc., 67 AD3d at 972 ; Ortega v. Puccia , 57 AD3d at 61–63 ). Whereas, where a claim is brought as a result of a dangerous condition, an owner or general contractor may be liable if it is demonstrated that her or she created the dangerous condition or failed to remedy a dangerous condition of which he or she had actual or constructive notice (see LaGiudice v. Sleepy's Inc., 67 AD3d at 972 ; Chowdhury v. Rodriguez , 57 AD3d at 128 ). In the instant action, plaintiff's Labor Law § 200 claim appears to have been based on both categories. Holt has argued that it did not create the alleged condition which caused plaintiff's injuries, that it did not have actual or constructive notice of it and that it did not direct or control plaintiff's work at the time of the subject accident.
In support of its motion, Holt has relied upon, among other things, plaintiff's deposition testimony, the testimony of Jack Epstein (Epstein), an employee of T. Moriarty, the testimony of Joseph Coll (Coll), an employee of Cord, and the affidavit and testimony of Karl Kuenneke (Kuenneke), an employee of Holt. With regard to his allegation that the subject accident was caused by the manner of the work, plaintiff testified that no one other than Coll supervised him in the performance of his work, that he did not make any complaints regarding the alleged condition to anyone and that his work did not involve T. Moriarty or URS.
Coll testified that he was employed as the foreman for Cord at the premises and that he supervised plaintiff's work on the date of the accident. Coll further testified that while an employee of Holt informed him where to accept deliveries of materials, dispose of garbage, and occasionally told him what work to start and finish and what was a priority, the Holt employee never directed him on the manner of how to perform his work for Cord. With this evidence, Holt has sufficiently demonstrated that it did not direct, control or supervise plaintiff's work.
In opposition, to the extent that plaintiff has argued that Holt had the sufficient authority to supervise his work such that Labor Law would apply in this matter, the record reflects that Holt merely had general supervisory authority over plaintiff's work. "General supervisory authority at a work site, the right to stop a contractor's work if a safety violation is observed, or the authority to ensure compliance with safety regulations or the terms of a contract is insufficient to impose liability under Labor Law § 200 ... [r]ather, the defendant must have had the ‘responsibility for the manner in which the [plaintiff's] work is performed’ " ( Messina v. City of New York , 147 AD3d 748, 749 [2d Dept 2017], quoting Ortega v. Puccia , 57 AD3d at 62, see Pilato v. 866 U.N. Plaza Assoc., LLC , 77 AD3d 644, 646 [2d Dept 2010] ).
With regard to plaintiff's allegation that the subject accident was caused by a dangerous condition, Epstein testified that he was an employee of T. Moriarty and that T. Moriarty installed the piece of plywood that was involved in the subject accident over a year prior to plaintiff's accident, pursuant to the plans and specifications of URS. Kuenneke stated in his affidavit and testified that he was the construction supervisor for Holt at the premises and that he was at the premises on a daily basis and responsible for site safety.
Kuenneke testified that he did not notice the plywood in the sidewalk prior to the date of the accident, but that he did observe it after the accident and that the plywood looked as if it had been in that location for a long period of time. Both plaintiff and Kuenneke testified that the alleged condition of the plywood was weathered, worn-looking and gray. Kuenneke further testified that the worksite was located inside the Air France terminal lounge, that no work was taking place in the area of the plywood, but that the work was taking place approximately 10 to 20 feet away from that area.
Contrary to Kuenneke's testimony, plaintiff's testimony that work for the Air France renovation project, including the delivery of renovation materials for various trades, including plaintiff's employer, was taking place where the plywood was located, as well as the above evidence, has demonstrated that a genuine issue of material fact exists, at least, as to whether Holt had constructive notice of the allegedly dangerous condition (see Alvarez v. Prospect Hosp. , 68 NY2d at 324 ; Simms v. Elm Ridge Assoc. , 259 AD2d 538, 539 [2d Dept 1999] ; see also Edwards v. W.K. Nursing Home Corp. , 107 AD3d 639, 640 [1st Dept 2013] ). As such, Holt has failed to satisfy its prima facie burden and the opposition papers need not be considered. Therefore, Holt is not entitled to summary judgment dismissing plaintiff's causes of action brought under Labor Law § 200 and for common-law negligence.
Next, the court will address the motion by T. Moriarty and URS for summary judgment dismissing plaintiff's complaint. T. Moriarty and URS have argued that they owed no common-law duty to plaintiff since he was not a party to the URS's contract with Port Authority or to T. Moriarty's contract with URS, and he has failed to expressly plead that any of the exceptions set forth in Espinal v. Melville Snow Contractors, Inc. (98 NY2d 136, 138 [2002] ), apply in this matter.
Generally, "[b]ecause a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (id. ; Dautaj v. Alliance El. Co. , 110 AD3d 839, 840 [2d Dept 2013] ). "[A] contractual obligation, standing alone, is insufficient to give rise to tort liability in favor of a non-contracting third party" ( Bienaime v. Reyer , 41 AD3d 400, 403 [2d Dept 2007] ). However, there are "three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( Espinal v. Melville Snow Contrs. , 98 NY2d at 140 [internal quotes and citations omitted] ).
Despite T. Moriarty's and URS's contention, plaintiff has annexed a copy of his bill of particulars with proof of service upon them. As T. Moriarty and URS correctly contend, "a contracting defendant moving for summary judgment need negate only those exceptions that were expressly pleaded by the plaintiff or expressly set forth in the bill of particulars" ( Mavis v. Rexcorp Realty, LLC , 143 AD3d 678, 679 [2d Dept 2016], see Barone v. Nickerson , 140 AD3d 1100, 1101 [2d Dept 2016] Glover v. John Tyler Enterprises, Inc. , 123 AD3d 882 [2d Dept 2014] ). In his amended verified complaint as well as in his bill of particulars, plaintiff has alleged that due to the negligence of T. Moriarty and URS, he was injured.
A careful reading of the amended verified complaint and the bill of particulars reflects that plaintiff has alleged facts against T. Moriarty and URS to allege that they launched a force or instrument of harm. By asserting that T. Moriarty and URS negligently created the hazardous condition of the plywood on the sidewalk in front of terminal one, plaintiff has sufficiently alleged the possible applicability of the first exception to Espinal v. Melville Snow Contrs. (98 NY2d at 140 ).
However, inasmuch as plaintiff did not sufficiently allege facts that would establish the possible applicability of the second and third exceptions to Espinal v. Melville Snow Contrs. (id. ), that plaintiff detrimentally relied T. Moriarty's and/or URS's continued performance of their contractual duties or that T. Moriarty and/or URS entirely displaced the owner's duty to maintain the premises safely, T. Moriarty and URS need not address those two exceptions on their motion (see Parrinello v. Walt Whitman Mall, LLC , 139 AD3d 685, 687 [2d Dept 2016] ; Bryan v. CLK–HP 225 Rabro, LLC , 136 AD3d 955, 956 [2d Dept 2016] ; Knox v. Sodexho Am., LLC , 93 AD3d 642 [2d Dept 2012] ).
With regard to plaintiff's allegation that T. Moriarty and URS launched a force or instrument of harm, "in support of their motion for summary judgment dismissing the complaint insofar as asserted against them, [T. Moriarty and URS must] establish, prima facie, that they did not create or exacerbate the alleged dangerous condition[ ]" ( Barone v. Nickerson , 140 AD3d 1100, 1102 [2d Dept 2016] ). T. Moriarty and URS have argued that this first exception does not apply in this case in order to give rise to a duty of care toward plaintiff.
T. Moriarty and URS have relied upon, among other things, plaintiff's deposition testimony, the deposition testimony of Epstein, and the deposition testimony of Robert Munno (Munno), an employee of URS. Plaintiff testified that when he stepped on the piece of plywood in front of terminal one it gave way under him and caused his right foot to go into the hole below the plywood and that the condition of the plywood was weathered, worn-looking and gray.
Epstein admitted that, pursuant to its agreement with URS, T. Moriarty installed the plywood on top of a "test pit" that was created as part of the bollard installation project over one year prior to plaintiff's alleged accident. He further testified that, while he had walked over the plywood himself once or twice since its installation, T. Moriarty did not conduct any inspections after the installation of the plywood in order to determine whether it was in a deteriorated condition and that he did not know if URS or Port Authority ever performed any such inspections. Munno testified that he was a project manager for URS, that when the plywood cover for the test pit was installed, a URS employee approved the installation of the plywood cover after ensuring that it was safe and secure, and that he did not know if URS or T. Moriarty ever returned to inspect the plywood after the date it was installed.
Based upon the evidence in the record, T. Moriarty and URS have failed to satisfy their prima facie burden on their motion. It is undisputed that T. Moriarty and/or URS created the alleged condition and that the bollard installation project was still ongoing at the time of plaintiff's alleged accident. Viewing the evidence in the light most favorable to the non-movants in this matter (see Valente v. Lend Lease (U.S.) Const. LMB, Inc. , 29 NY3d 1104, 1105 [2017] ; Pearson v. Dix McBride, LLC , 63 AD3d 895, 895 [2d Dept 2009] ), T. Moriarty and URS have failed to point to sufficient evidence to eliminate all triable issues of fact as to whether they exercised reasonable care in the performance of their contractual duties and that they did not leave the subject side walk in front of terminal one in a condition that was less safe for those traversing it, than it was prior to the performance of their work (see Schosek v. Amherst Paving, Inc. , 11 NY3d 882, 883 [2008] ; see generally Petito v. City of New York , 95 AD3d 1095, 1096 [2d Dept 2012] ; cf. Church ex rel. Smith v. Callanan Indus., Inc. , 99 NY2d 104, 112 [2002] ).
The evidence has demonstrated that genuine issues of material fact remain, at the very least, as to whether the first Espinal v. Melville Snow Contrs. (98 NY2d at 140 ), exception applies in this case and whether T. Moriarty and/or URS launched a force or instrument of harm that would give rise to a duty of care toward plaintiff. Therefore, T. Moriarty and URS are not entitled to summary judgment dismissing plaintiff's complaint.
Labor Law § 241 (6)Holt, Port Authority and Terminal One have moved for summary judgment dismissing plaintiff's cause of action brought under Labor Law § 241 (6). " Labor Law § 241 (6) imposes a nondelegable duty on owners and general contractors to ensure that ‘[a]ll areas in which construction ... work is being performed’ are maintained in a safe condition" ( Brown v. Brause Plaza, LLC , 19 AD3d 626, 628 [2d Dept 2005], quoting Labor Law § 241 [6 ] ). "In order to establish liability under Labor Law § 241 (6), a plaintiff must demonstrate that ... defendant's violation of a specific rule or regulation [promulgated by the Commissioner of the Department of Labor], was a proximate cause of the accident" ( Mercado v. TPT Brooklyn Assoc., LLC , 38 AD3d 732, 733 [2007] ; see Ross v. Curtis–Palmer Hydro–Elec. Co. , 81 NY2d 494, 501–502 [1993] ). In the instant matter, in his bill of particulars dated June 2, 2015, plaintiff has predicated his section 241 (6) cause of action upon alleged violations of various sections of the Industrial Code, including 12 NYCRR 23–1.7, 1.7 (b), 1.7(b)(1), 1.7(d), 1.7(e), 1.7(e)(1) and (2), and 1.11.
As an initial matter, Holt has argued that Labor Law § 241 (6) does not apply in this matter since the alleged accident which led to plaintiff's injuries occurred as a result of a project that was not under Holt's direction or control and that the alleged accident occurred outside of the airport terminal as a result of work that was wholly separate to the work Holt was retained to perform inside of the terminal. However, "[t]he Court of Appeals has instructed that Labor Law § 241 (6) covers industrial accidents that occur in the context of construction ... In that regard, work that is an ‘integral part of the construction contract’ and is ‘necessitated by and incidental to the construction ... and involve[s] materials being readied for use in connection therewith’ is construction work" ( Shields v. Gen. Elec. Co. , 3 AD3d 715, 717 [3d Dept 2004] [internal citation omitted], quoting Brogan v. International Bus. Machs. Corp. , 157 AD2d 76, 79 [3d Dept 1990] ; see Nagel v. D & R Realty Corp. , 99 NY2d 98, 103 [2002] ; see White v. Vil. of Port Chester , 92 AD3d 872, 877 [2d Dept 2012] [plaintiff was injured in the course of delivering materials for use at the construction site and was entitled to the protections of Labor Law § 241(6) ] ).
Under the circumstances, inasmuch as plaintiff's testimony has established that he was injured while transporting construction materials being readied for use in relation to the construction work that was ongoing, Holt has failed to adequately demonstrate that Labor Law § 241 (6), is inapplicable in this matter (see White v. Vil. of Port Chester , 92 AD3d at 877 ).
To the extent that Port Authority and Terminal One appear to argue that plaintiff cannot recover under Labor Law § 241 (6) because all sections of part 23–1 of the Industrial Code are only general guidelines, contrary to that contention, the court notes that various sections of the Industrial Code relied upon by plaintiff have, in fact, been found to be sufficiently specific to support a cause of action under Labor Law § 241 (6). Thus, Port Authority and Terminal One have failed to demonstrate that Labor Law § 241 (6), is inapplicable in this case.
The court will now address the specific sections of the Industrial Code that plaintiff has relied upon in support of his section 241 (6) cause of action. 12 NYCRR 23–1.7 contains subsections (a) through (h). Holt has argued that subsections (a), entitled "Overhead hazards," (c), entitled "Drowning hazards," (f), entitled "Vertical passages," (g), entitled "Air-contaminated or oxygen deficient work areas," and (h), entitled "Corrosive substances," are all inapplicable to the facts of the instant case.
Holt has relied upon plaintiff's testimony, which reflected that the subject accident was not precipitated by any overhead hazards, drowning hazards, vertical passages, air-contaminated or oxygen deficient work areas, or corrosive substances. Therefore, Holt has adequately demonstrated that 12 NYCRR 23–1.7(a), (c), (f), (g), or (h), were neither involved in, nor related to the subject accident. No party has raised a triable issue of fact in opposition. Therefore, Holt has satisfied its prima facie burden on its motion as to these claims and is entitled to their dismissal. Although Port Authority and Terminal One have failed to adequately address these subsections in their cross motion, in light of the court's determination that they are inapplicable, Port Authority and Terminal One are also entitled to the dismissal of these claims.
Holt has argued that 12 NYCRR 23–1.7(b)(1) is inapplicable in the instant case because plaintiff did not fall through the type of hazardous opening within the contemplation of this subsection. 12 NYCRR 23–1.7(b)(1), provides the following:
"(b)Falling hazards. (1) Hazardous openings. (i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule). (ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit. (iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows: (a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or (b) An approved life net installed not more than five feet beneath the opening; or (c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage."
This section has been found to be sufficiently specific to support a section 241 (6) claim (see Barillaro v. Beechwood RB Shorehaven, LLC , 69 AD3d 543, 544 [2d Dept 2010] ). "[A]lthough the term ‘hazardous opening’ is not defined in 12 NYCRR 23–1.7 (b), based upon a review of the regulation as a whole—particularly the safety measures delineated therein—it is apparent that the regulation is ‘inapplicable where the hole is too small for a worker to fall through’ " ( Rice v. Bd. of Educ. of City of New York , 302 AD2d 578, 579 [2d Dept 2003], lv denied 100 NY2d 516 [2003], quoting Alvia v. Teman Elec. Contr. , 287 AD2d 421, 422–423 [2d Dept 2001], lv dismissed 97 NY2d 749 [2002] ; see Vitale v. Astoria Energy II, LLC , 138 AD3d 981, 983 [2d Dept 2016] [finding that 12 NYCRR 23–1.7 [b] does not apply to openings that are too small for a worker to completely fall through] ).
In this case, based upon plaintiff's testimony that the hole that his foot went into was approximately 8 to 12 inches in depth, which was covered by the piece of plywood that gave way, Holt has adequately demonstrated that this subsection of the Industrial Code is inapplicable and that the hole in the instant case was not a hazardous opening within the meaning of 12 NYCRR 23–1.7(b)(1) (see Barillaro v. Beechwood RB Shorehaven, LLC , 69 AD3d 543, 544 [2d Dept 2010] ; Scarso v. M.G. Gen. Const. Corp. , 16 AD3d 660, 661 [2d Dept 2005] ; Rice v. Bd. of Educ. of City of New York , 302 AD2d at 579 ). While Port Authority and Terminal One contend that this subsection is inapplicable, they have failed to adequately address this subsection in their cross motion. Nevertheless, in light of the above determination, Port Authority and Terminal One are also entitled to the dismissal of this claim.
In his bill of particulars, plaintiff has alleged the violation of 12 NYCRR 23–1.7(b), which encompasses subsection 1.7(b)(2), and subsection 1.7(d), both of which have been found to be sufficiently specific to support a cause of action under section 241 (6) ( O'Hare v. City of New York , 280 AD2d 458, 458 [2d Dept 2001] ; Whalen v. City of New York , 270 AD2d 340, 342 [2d Dept 2000] ). However, Holt, Port Authority and Terminal One have failed to adequately address subsections 1.7(b)(2) and 1.7(d), in their respective motion and cross-motion papers. Thus, Holt, Port Authority and Terminal One are not entitled to the dismissal of these claims.
In his bill of particulars, plaintiff has alleged the violation of 12 NYCRR 23–1.7(e), entitled "Tripping and other hazards," which provides the following:
"(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
12 NYCRR 23–1.7 (e)(1) and (2) have been found to be sufficiently specific to support plaintiff's cause of action brought under Labor Law § 241 (6) (see Mugavero v. Windows By Hart, Inc. , 69 AD3d 694, 695 [2d Dept 2010] ). Holt has argued that 12 NYCRR 23–1.7(e)(1) entitled "Passageways," and (e)(2) entitled "Working areas," are inapplicable in this case because plaintiff did not trip, nor did his alleged accident take place in a passageway or in a working area and that the accident did not involve an accumulation of dirt and debris, scattered tools and materials or sharp projections. In their reply to plaintiff's arguments in opposition, Port Authority and Terminal One have similarly argued that plaintiff did not trip, that the area where plaintiff's accident allegedly occurred was not a passageway for purposes of the Industrial Code, and that the accident was not the result of the accumulation or dirt and/or debris or a tripping hazard, nor did it involve sharp projections. Holt, Port Authority and Terminal One have relied upon, among other things, plaintiff's deposition testimony.
Based upon plaintiff's above testimony as to how the subject accident occurred, which testimony does not reflect that he tripped on any tripping hazard or that he was cut, punctured or otherwise injured by any sharp projections, Holt, Port Authority and Terminal One have satisfied their prima facie burden as to 12 NYCRR 23–1.7 (e)(1) (see Costa v. State of New York , 123 AD3d 648 [2d Dept 2014] ; Keener v. Cinalta Constr. Corp. , 146 AD3d 867, 868 [2d Dept 2017] ; see also Velasquez v. 795 Columbus LLC , 103 AD3d 541 [1st Dept 2013] ). In opposition to the branches of Holt's, Port Authority's and Terminal One's motion and cross motion regarding this section, plaintiff has failed to point to sufficient evidence to raise a triable issue of fact. Therefore, Holt, Port Authority and Terminal One are entitled to the dismissal of this claim.
Furthermore, based upon plaintiff's deposition testimony that the sidewalk in front of terminal one was free of any debris or other obstructions at the time of the subject accident, his testimony reflects that the alleged defect involved in the subject accident was not caused by a hazard, such as dirt, debris, scattered tools and materials, or sharp projections, within the contemplation of 12 NYCRR 23–1.7 (e)(2). Plaintiff has failed to point to sufficient evidence to raise a triable issue of fact in opposition. Therefore, Holt, Port Authority and Terminal One are entitled to the dismissal of this claim.
12 NYCRR 23–1.11, entitled "Lumber and nail fastenings," provides the following:
"(a) The lumber used in the construction of equipment or temporary structures required by this Part (rule) shall be sound and shall not contain any defects such as ring shakes, large or loose knots or other defects which may impair the strength of such lumber for the purpose for which it is to be used. (b) The lumber dimensions specified in this Part (rule) are nominal or trade size except as otherwise specifically stated with the words "full size" and except in the case of ladders. (c) All nails shall be driven full length and shall be of the proper size, type, length and number to provide the required strength at all joints. Only double-headed or screw-type nails shall be used in the construction of scaffolds."
Holt has argued that this section, which applies to lumber used in the "construction of equipment or temporary structures" is inapplicable to it since neither Holt, nor any of its subcontractors created the alleged hole involved in plaintiff's accident or installed the plywood cover over said hole. 12 NYCRR 23–1.11 has been found to be sufficiently specific to support a cause of action under Labor Law § 241 (6) (see Honeyman v. Curiosity Works, Inc. , 154 AD3d 820, 821 [2d Dept 2017] ; see also Skudlarek v. Bethlehem Steel Corp. , 251 AD2d 973, 974 [4th Dept 1998] ). Holt has relied upon, among other things, a URS "Daily Report" dated July 15, 2013, to July 16, 2013, and the deposition testimony of Epstein.
The URS Daily Report and Epstein's testimony have demonstrated that the hole that was covered by plywood, which was involved in plaintiff's accident, was the test pit that was created by T. Moriarty for the bollard installation project and that the test pit was then covered over by plywood by T. Moriarty. Therefore, Holt has satisfied its prima facie burden by demonstrating that it did not create the alleged condition which caused the subject accident and that this claim is inapplicable to Holt. In opposition, no party has sufficiently raised a triable issue of fact as to Holt's liability under this subsection. Therefore, Holt is entitled to the dismissal of this claim.
With regard to the branch of Port Authority's and Terminal One's cross motion to dismiss plaintiff's claim under 12 NYCRR 23–1.11, contrary to the arguments of Port Authority and Terminal One as set forth in their cross motion papers, as this court has stated above, 12 NYCRR 23–1.11 is sufficiently specific to support a cause of action under section 241 (6) (see Honeyman v. Curiosity Works, Inc. , 154 AD3d at 821 ; see also Skudlarek v. Bethlehem Steel Corp. , 251 AD2d at 974 ). Port Authority and Terminal One have failed to satisfy their prima facie burden in their motion papers as to this claim since they have otherwise failed to address or sufficiently demonstrated through admissible evidence whether this section was either not applicable to them and/or was not violated. Thus, the court need not consider the opposition papers. As such, Port Authority and Terminal One are not entitled to the dismissal of this claim.
Although Holt has addressed arguments in its motion papers to 12 NYCRR 23–3.33, entitled "Demolition by Hand," the court notes that plaintiff has not alleged the violation of that section in his bill of particulars dated June 2, 2015. In light of the above determinations, Holt, Port Authority and Terminal One are not entitled to the dismissal of plaintiff's cause of action brought under Labor Law § 241 (6).
Third–Party Claims, Cross Claims & Counter Claims
As a matter of relevant procedural background, following commencement of the main action, Holt commenced a third-party action against Cord, T. Moriarty and URS. Terminal One and Port Authority then commenced a second third-party action against Cord. The parties have all asserted various cross claims and counter claims against each other. In an order dated August 14, 2017, this court granted plaintiff leave to amend the summons and verified complaint to add T. Moriarty and URS as defendants in the main action.
In Holt's answer to plaintiff's amended verified complaint, dated September 7, 2017, Holt alleged cross claims against T. Moriarty and URS sounding in common-law indemnification and contribution, contractual indemnification, and breach of contract for failure to procure insurance. In its third-party action, Holt alleged causes of action against T. Moriarty and URS sounding in common-law indemnification and/or contribution. Holt has now moved for summary judgment only on its claims sounding in common-law indemnification against T. Moriarty and URS, while T. Moriarty and URS have moved for summary judgment dismissing the third-party action.
As to Holt's claims against T. Moriarty and URS sounding in common-law indemnification and/or contribution, this court's above determination that issues of fact remain as to whether any fault may be attributable to Holt, T. Moriarty and/or URS in this matter, precludes summary relief. "Since summary judgment on a claim for common-law indemnification ‘is appropriate only where there are no issues of material fact concerning the precise degree of fault attributable to each party involved’ " ( Coque v. Wildflower Estates Developers, Inc. , 31 AD3d 484, 489 [2d Dept 2006], quoting La Lima v. Epstein , 143 AD2d 886, 888 [2d Dept 1988] ; see Kwang Ho Kim v. D & W Shin Realty Corp. , 47 AD3d 616, 620 [2d Dept 2008] ), a determination on this claim would be premature at this time. Therefore, Holt is not entitled to summary judgment on its claims against T. Moriarty and URS sounding in common-law indemnification and/or contribution. For the same reasons, T. Moriarty and URS are not entitled to summary judgment dismissing Holt's third-party complaint.
To the extent that T. Moriarty and URS have moved for summary judgment dismissing Holt's cross claims sounding in contractual indemnification and breach of contract for failure to procure insurance, they have satisfied their prima facie burden on these branches of their motion with admissible evidence demonstrating that Holt was not in contractual privity with them (see Alvarez v. Prospect Hosp. , 68 NY2d at 324 ). Holt has failed to oppose these branches of their motion and no other parties have raised a triable issue of fact in opposition. Therefore, T. Moriarty and URS are entitled to the relief sought on these branches of their motion.
As to any other cross claims that have been asserted against T. Moriarty and URS, in light of the court's above determination that issues of fact remain as to whether any fault is attributable to them, T. Moriarty and URS are not entitled to the relief sought on the branch of their motion for summary judgment dismissing all cross claims.
In its third-party complaint, Holt has also alleged cross claims against Cord sounding in: 1) contractual indemnification and for attorney's fees, 2) common-law indemnification and/or contribution, 3) breach of contract for failure to procure insurance, and 4) breach of contract. Holt has moved for summary judgment only on its third-party claims against Cord sounding in contractual indemnification and breach of contract for failure to procure insurance, while Cord has cross-moved for summary judgment dismissing Holt's first, second, third and fourth third-party causes of action. As previously discussed, the court will limit its discussion of Cord's untimely cross motion to the nearly identical issues that have been raised upon Holt's motion, in particular, those relating only to Holt's first third-party claim for contractual indemnification and its third third-party claim for breach of contract for failure to procure insurance. Thus, Cord is not entitled to summary judgment on the branches of its cross motion seeking to dismiss Holt's second and fourth third-party causes of action.
As to Holt's first cause of action for contractual indemnification and attorney's fees, the above determination precludes summary relief on these third-party claims at this juncture (see Konsky v. Escada Hair Salon, Inc. , 113 AD3d 656, 659 [2d Dept 2014] ; Gil v. Manufacturers Hanover Trust Co. , 39 AD3d 703, 705 [2d Dept 2007] ; Watters v. R.D. Branch Assoc., LP , 30 AD3d 408, 409–410 [2d Dept 2006] ). Therefore, neither Holt, nor Cord, are entitled to the relief sought on the branches of their respective motion and cross motion for summary judgment on this third-party cause of action.
Next, with regard to Holt's third third-party cause of action for breach of contract for failure to procure insurance, Holt has argued that Cord breached its contractual obligation to purchase insurance naming Holt as an additional insured. In support of this branch of its cross motion, Cord has annexed a copy of the insurance policy issued by Starr Insurance Company. While it is true, as Cord contends, that the annexed insurance policy was applicable on the date of the subject accident, the "Additional Insured" endorsements merely names any additional insureds as "Where required by written contract."
Cord has failed to point to where in the policy, if at all, Holt was clearly named as an additional insured pursuant to the terms of the written agreement between Holt and Cord. Based upon this evidence, it is unclear as to whether Cord breached its agreement to procure insurance for Holt. Therefore, neither Holt, nor Cord are entitled to summary relief at this time on Holt's third party claim for breach of contract for failure to procure insurance.
In its verified answer to plaintiff's amended verified complaint, Holt has alleged cross claims against Port Authority and Terminal One sounding in common-law indemnification and contribution, contractual indemnification, and for breach of contract for failure to procure insurance. Holt has now moved for summary judgment only on its claim sounding in common-law indemnification against Port Authority and Terminal One. The above determination precludes summary relief on this cause of action at this time (see Kwang Ho Kim v. D & W Shin Realty Corp. , 47 AD3d at 620 ; Coque v. Wildflower Estates Developers, Inc. , 31 AD3d at 489 ). Therefore, Holt is not entitled to summary judgment on its claim sounding in common-law indemnification against Port Authority and Terminal One.
Holt has also moved for summary judgment dismissing all counter claims and cross claims asserted against it. However, in light of the court's determination that issues of fact remain as to whether any fault is attributable to Holt, it is not entitled to summary judgment dismissing all counter claims and cross claims.
While Port Authority and Terminal One have cross-moved for summary judgment on their claims against Cord sounding in contractual defense and indemnification, per ths court's determination that their cross motion is untimely and inasmuch as this branch of their cross motion is not on nearly identical issues already before the court on a timely motion, the court will not make a determination as to these claims.
Accordingly, the branch of the motion by Holt for summary judgment dismissing plaintiff's causes of action brought under Labor Law § 240 (1), is granted, and its motion is denied in all other respects. The branches of the motion by T. Moriarty and URS for summary judgment dismissing Holt's cross claims sounding in contractual indemnification and breach of contract for failure to procure insurance are granted, and their motion is denied in all other respects. The cross motion by Cord for summary judgment dismissing Holt's third-party causes of action is denied. The branch of the cross motion by Port Authority and Terminal One for summary judgment dismissing plaintiff's cause of action brought under Labor Law § 240 (1), is granted, and its cross motion is denied in all other respects.