Opinion
18615/07.
Decided August 9, 2010.
This decision and order rules on eight motions and cross-motions for various relief in the instant action. Plaintiff Marcus McLean (McLean) claims injuries as a result of being struck by a falling object while installing "microduct" during a building alteration, and moves, pursuant to CPLR Rule 3212, for partial summary judgment on liability with respect to his Labor Law §§ 240 (1) and 241 (6) causes of action.
Defendants Verizon New York, Inc. and Verizon Communications, Inc. d/b/a Verizon (collectively "Verizon") move, pursuant to CPLR Rule 3212, for summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against them.
Defendant Mastec Incorporated (Mastec) moves, pursuant to CPLR Rule 3212, for summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against it.
Defendant/third-party plaintiff Linear Technologies, Inc. (Linear) moves for: summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against it, pursuant to CPLR Rule 3212; contractual indemnification against third-party defendant/second third-party defendant Original Communications, Inc.; and, a declaration that Linear is an additional insured under Original's insurance policy with second third-party defendant National Grange Mutual Insurance Company (National Grange) or, alternatively, for summary judgment, pursuant to CPLR Rule 3212, against Original due to Original's breach of contract by its failure to procure liability insurance to cover Linear.
Third-party defendant Original cross-moves for summary judgment, pursuant to CPLR 3212, for dismissal of plaintiff's complaint and the third-party and second third-party complaints against it.
Defendants/second third-party plaintiffs 405 Webster Avenue Associates and Real Property Associates Management Corp. (collectively "405 Webster") move for: contractual indemnification against Linear and Original; and, a declaration that National Grange is obligated to defend and indemnify 405 Webster, pursuant to an additional insured endorsement in National Grange's policy with Original.
In a separate cross-motion, defendants/second third-party plaintiffs 405 Webster cross-move, pursuant to CPLR Rule 3212, for summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against 405 Webster.
Second third-party defendant National Grange cross-moves, pursuant to CPLR 3212, for summary judgment and dismissal of 405 Webster's second third-party complaint against it and all cross-claims asserted against it.
The Court notes that defendants' respective motions ostensibly move for summary judgment and dismissal of all cross-claims against them. However, many of the cross-claims alleged in the various pleadings are not discussed in the respective motion papers. This decision and order will only address the viability of cross-claims which are actually addressed in the respective motion papers. Anything not addressed by the Court is denied without prejudice.
Background and procedural history
The instant action arises from personal injuries sustained by plaintiff, on April 18, 2007, while installing "microduct" in a four-story apartment building owned and managed by 405 Webster, located at 405 Webster Avenue, New Rochelle, New York (the building or the premises). Prior to the accident, on or about January 11, 2007, Verizon and 405 Webster entered into a licensing agreement in which 405 Webster agreed to allow Verizon to install fiberoptic cable in the building, to provide the 25 apartment units in the building with access to Verizon's combination cable television/internet/telephone service, marketed as "FiOS." Verizon, after entering into the licensing agreement, hired Mastec to install microduct throughout the premises. The microduct acts as protective conduit housing the FiOS cable. Verizon retains subcontractors to install microduct conduit, but, as required by union contract, uses only Verizon employees to install the actual FiOS cable inside the microduct conduit.
Mastec, after executing the contract with Verizon to install the microduct, hired Linear to install the microduct at the premises. Thereafter, Linear conducted a "site survey" of the building to determine, among other things, the equipment and materials that would be needed to perform the installation work, taking into account the building's layout. Representatives of Verizon, Mastec, and 405 Webster were present during the site survey. Ultimately, they determined that the microduct conduit and FiOS cable would be routed through several abandoned dumbwaiter shafts, which ran up into the building from the basement. Linear, after it conducted the site survey, hired Original, plaintiff's employer, to perform the actual microduct installation work at the premises.
On April 18, 2007, the day of the accident, plaintiff and several Original co-workers installed microduct in another building located "upstate off of the Palisades Parkway [McLean EBT, p. 93, lines 16-17]." Toward the end of the day, Kevin Lewis, President and owner of Original, asked these workers if they were willing to work additional hours on a second project, at the subject building, to earn extra money [McLean EBT, p. 93]. Plaintiff McLean, his supervisor Bruce Thompson, Jonathan Brailey and another Original employee known as "Pops" agreed to perform the second project, installing microduct at 405 Webster Avenue [McLean EBT, p. 96]. Although other Original workers had already installed microduct in parts of the premises, this was the first time that plaintiff had ever been to the building [McLean EBT, p. 96].
Upon arriving at the premises, plaintiff and Brailey were assigned the task of installing microduct into one set of apartments while Pops and Thompson installed microduct into another set of apartments [McLean EBT, pp. 99-100]. Plaintiff and Brailey were directed to run microduct from the basement of the building up dumbwaiter shaft "F" and then into individual apartments on different floors of the building [McLean EBT, p. 111; p. 120]. According to Stephen Gifford (Gifford), President of 405 Webster Avenue, the dumbwaiter shafts were out of use for years and the tenants did not have access to the dumbwaiter shafts in their apartments [Gifford EBT, p. 59].
Plaintiff McLean and Brailey measured the amount of microduct they would need to run into each apartment and cut the microduct to length [McLean EBT, p. 110]. Thereafter, Brailey drilled a hole through the wall in an apartment on the first floor of the building into the dumbwaiter shaft and lowered a string down the shaft to the basement, while plaintiff, in the basement, drilled a hole above a doorway leading into the dumbwaiter shaft and ran microduct along the basement ceiling through this hole [McLean EBT, pp. 125-126]. Then, plaintiff taped the microduct to the string and Brailey began to pull the microduct up the shaft [McLean EBT, p. 126]. According to plaintiff, as Brailey pulled the microduct up the shaft, he stood on top of an abandoned three to four foot high wooden dumbwaiter cart inside the dumbwaiter shaft to help feed microduct up the shaft [McLean EBT, pp. 115, 140]. Thus, if the microduct caught on something, plaintiff would pull it back down a little to free it [McLean EBT, pp. 129-140; 135-137]. Plaintiff claims that, prior to beginning the work, he asked the building superintendent about taking the cart out of the shaft and was told that it could not be removed [McLean EBT, p. 109]. Further, plaintiff testified that he shined a flashlight up the shaft and saw a rope and old wires [McLean EBT, p. 141]. However, according to plaintiff, he could not see beyond the second floor level because it was too dark [McLean EBT, p. 142].
Prior to the accident, plaintiff and Brailey ran microduct up the shaft into apartments on the first and second floors of the building. The accident occurred as the workers attempted to run microduct up the shaft to an apartment on the third floor. Specifically, while plaintiff stood on the dumbwaiter cart in the shaft feeding the microduct up to Brailey on the third floor, a heavy object fell down the shaft and struck plaintiff in the neck area, causing various injuries [McLean EBT, pp. 157-163]. Further, plaintiff testified that immediately prior to the accident, he heard a "rumble" [McLean EBT, p. 538, line 17] coming from up the shaft, that he had no recollection of being struck by the object, and the last thing he remembered prior to waking up in the hospital was watching the microduct being pulled up the shaft [McLean EBT, pp. 162-163]. Also, plaintiff testified that he did not know what struck him, but was told by Brailey while he was in the hospital that he was struck by a metal bucket filled with dried concrete [McLean EBT, p. 171].
Thompson testified that immediately after the accident he heard Brailey screaming and he ran down to the basement and found Brailey holding plaintiff [Thompson EBT, pp. 144-146]. Also, Thompson testified that he noticed a broken rope in the elevator shaft and saw "the big weight that holds up the [dumbwaiter] crashed down on the [dumbwaiter] shaft itself [Thompson EBT, p. 147, lines 7-9]. Further, Thompson testified that plaintiff told him that he was inside the dumbwaiter and pulled on a rope, "and when he pulled on the rope, he did not know that the weight was coming down and by the time he looked up, the weight landed on him and knocked them [him] back down out of the dumbwaiter [Thompson EBT, p. 148, lines 18-22]."
Kevin Lewis testified that he originally was under the impression that plaintiff was struck by a bucket of cement [Lewis EBT, p. 113]. However, Lewis was told about a month after the accident by Gifford, the building owner, that plaintiff was struck by a dumbwaiter counterweight [Lewis EBT, pp. 78-79; p. 131].
Plaintiff commenced the instant action by summons and complaint, dated May 24, 2007, against 405 Webster, Gifford (subsequently all claims and cross-claims against Gifford were voluntarily discontinued), Linear, Mastec, and Verizon, asserting a common-law negligence cause of action, relying upon res ipsa loquitur. Subsequently, plaintiff, after obtaining leave of the court in October 2008, served a supplemental summons and amended verified complaint against the same defendants, which added causes of action pursuant to Labor Law §§ 240 (1) and 241 (6). In addition, plaintiff served a supplemental verified bill of particulars alleging violations of 30 separate New York State Industrial Code regulations.
Defendants, after being served with the complaint, interposed answers asserting various cross-claims against each other seeking contribution, common-law indemnification, contractual indemnification and damages for breach of contract to procure liability insurance. In addition, Linear commenced a third-party action against Original seeking common-law and contractual indemnification and damages for breach of contract to procure liability insurance. Linear also cross-claims against National Grange seeking a defense and indemnification in the underlying action as an additional insured under National Grange's policy with Original. Similarly, 405 Webster commenced a second third-party action against Original and National Grange seeking contractual and common-law indemnification against Original. Further, 405 Webster sought damages against Original for breach of contract to procure liability insurance or, alternatively, a declaration that National Grange is obligated to defend and indemnify 405 Webster in the underlying action.
Plaintiff, on August 27, 2009, filed a note of issue. After oral argument on the eight pending motions and cross-motions, the Court reserved decision.
Plaintiff's Labor Law § 240 (1) claim
Plaintiff McLean moves for partial summary judgment on liability with respect to his Labor Law § 240 (1) cause of action, while defendants Verizon, Linear, Mastec, 405 Webster and third-party defendant Original separately move to dismiss plaintiff's Labor Law § 240 (1) cause of action. Defendants, in support of their motions to dismiss this cause of action, all raise the argument that the object that fell down the shaft and struck plaintiff was not being hoisted or secured at the time it fell. Further, defendants maintain that the subject object did not require securing for purposes of Labor Law § 240 (1) because whether plaintiff was struck by a bucket of cement or a dumbwaiter counterweight the alleged falling object had no connection to the work being performed by plaintiff. Rather, defendants claim that the falling object was a preexisting condition in the dumbwaiter shaft that happened to fall while plaintiff was working in the shaft. According to defendants, relevant case law makes it clear that Labor Law § 240 (1) does not apply in this type of falling object case.
Verizon and 405 Webster, in further support of their respective motions to dismiss plaintiff's Labor Law § 240 (1) claim, argue that plaintiff's work at the time of the accident did not fall under the protection of the statute. Specifically, these defendants note that the statute only covers work relating to the erection, demolition, repairing, or altering of a building or structure. Plaintiff was not erecting, demolishing or repairing the building. Moreover, Verizon and 405 Webster maintain that the work did not qualify as altering a building because the installation of microduct did not entail making a significant physical change to the building.
Finally, 405 Webster, in further support of its cross-motion to dismiss plaintiff's Labor Law § 240 (1) claim, maintains that plaintiff's own actions were the sole proximate cause of the accident and plaintiff was a recalcitrant worker. 405 Webster, in support of this argument, uses Thompson's deposition testimony, in which he stated that it was not necessary for plaintiff to stand on the dumbwaiter cart inside the shaft to help guide the microduct up the dumbwaiter shaft because he could have performed his work while standing outside the shaft [Thompson EBT, p. 203; p. 220]. 405 Webster also submits an expert affidavit by Timothy J. Carlsen, a professional engineer, who inspected the dumbwaiter shaft after the accident and reviewed the relevant deposition testimony in this case. According to Mr. Carlsen, plaintiff could have attached the microduct to the string lowered by Brailey, his co-worker, and guided the microduct up the shaft while standing in the doorway. 405 Webster also maintains that plaintiff disregarded Thompson's instructions not to stand inside the shaft. Further, to the extent that plaintiff needed to be elevated to perform his work, plaintiff admitted at his deposition that there was a ladder available for his use, but plaintiff did not use the ladder [McLean EBT, pp. 464-466]. This, according to 405 Webster, demonstrates that plaintiff's own actions were the sole proximate cause of the accident and plaintiff was a recalcitrant worker.
Plaintiff, in support of his own motion for partial summary judgment on liability, pursuant to Labor Law § 240 (1), claims that after he was struck by the falling object, he fell a distance of approximately four feet from the top of the dumbwaiter cart to the basement floor. Further, he asserts that his fall was caused by the defendants' failure to provide him with any Labor Law § 240 (1) safety devices, making defendants liable as a matter of law.
Defendants raise several arguments in opposition to this branch of plaintiff's motion. First, defendants contend that there is no evidence to support plaintiff's claim that he fell from the dumbwaiter cart to the floor because the accident was unwitnessed. Second, defendants point out that plaintiff himself testified that he had no recollection of what happened after he was struck by the falling object in the dumbwaiter shaft. Further, defendants argue that, even assuming that plaintiff fell from the dumbwaiter cart, plaintiff failed to demonstrate that the difference in elevation between the top of the cart and the floor required that plaintiff be provided with a Labor Law § 240 (1) safety device, since the top of the cart was, at most, only four feet above the floor.
Plaintiff, in opposition to defendants' respective summary judgment motions, and in further support of his own partial summary judgment on liability with respect to Labor Law § 240 (1), argues that he was struck by an object requiring that it be secured for purposes of Labor Law § 240 (1). Further, plaintiff contends that there is no basis for defendants' claim that he was the sole proximate cause of the accident and/or a recalcitrant worker because it was necessary for him to position himself inside the dumbwaiter shaft as this was the only way he could guide the microduct around obstructions as it was being pulled up the shaft. Additionally, plaintiff notes that there is no evidence that Thompson, his supervisor, told him to stay out of the dumbwaiter shaft. Thompson, to the contrary, claims that he never instructed his workers not to enter the dumbwaiter shafts because there was no need for his workers to go into the dumbwaiter shafts to perform microduct installation [Thompson EBT, pp. 247-248]. Finally, plaintiff maintains that the presence of an A-frame ladder at the job site was irrelevant because there was no room to fit an open A-frame ladder in the dumbwaiter shaft.
Labor Law § 240 (1) provides, in pertinent part, that:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . 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.
"Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). "The purpose of this statute is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility." ( Id. at 500; see also Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 520). "The duty imposed by Labor Law § 240 (1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work." ( Ross, 81 NY2d at 500). However, given the exceptional protection offered by Labor Law § 240 (1), the statute does not cover accidents merely tangentially related to the effects of gravity. Rather, gravity must be a direct factor in the accident as when a worker falls from a height or is struck by a falling object. ( Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513).
The Court, as a threshold matter, must address Verizon and 405 Webster's argument that the work being performed by plaintiff at the time of his accident was not protected by Labor Law § 240 (1) because, if correct, there would be no need for any further analysis regarding plaintiff's claim. Specifically, the Court must determine whether or not the microduct installation at the subject building constituted an "altering" within the meaning of the statute. The leading case on this issue is Joblon v Solow ( 91 NY2d 457), in which the Court of Appeals, at 465, determined that "altering' within the meaning of Labor Law § 240 (1) requires making a significant physical change to the configuration or composition of the building or structure." Applying this standard in Joblon, the Court found that clock installation work involving the extension of electrical wiring from an existing power source through a hole that had been chiseled in a concrete block wall was sufficient to qualify as an altering under the statute. ( Id.). In the instant action, the microduct installation is comparable to the underlying electrical installation work in Joblon. Plaintiff McLean and his co-workers ran microduct conduit from a source outside the building into a box along the basement ceiling, then up the dumbwaiter shaft and through holes drilled into the shaft from several different apartment units in the building. The work performed by plaintiff and his co-workers in the instant case resulted in a greater physical change to the building when compared to the work to the subject building in Joblon. Therefore, plaintiff McLean's microduct installation at the time of his accident qualifies as "altering" under Labor Law § 240 (1).
Next, turning to the issue of whether or not plaintiff's accident was gravity-related for purposes of Labor Law § 240 (1), the Court notes that this cause of action is apparently based upon both falling object and falling worker theories of liability. Plaintiff's summary judgment motion seeks relief based upon plaintiff's alleged fall from the top of the dumbwaiter cart to the basement floor. However, plaintiff's affirmation in opposition to defendants' motions and in further support of his summary judgment motion argues that defendants are liable under the statute because they failed to secure the object that fell down the shaft and struck him. In any event, for the reasons to follow, plaintiff's Labor Law § 240 (1) cause of action must be dismissed under both theories of liability.
To the extent that plaintiff's Labor Law § 240 (1) claim is based upon a falling object theory, it is well-settled that "not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240 (1)." ( Novak v Del Savio , 64 AD3d 636 , 638 [2d Dept 2009]). ( See Narducci v Manhasset Bay Associates, 96 NY2d 259, 267). The statute only applies when a worker is struck by: an object that is in the process of being hoisted or secured ( Narducci, 96 NY2d at 268); or, an object that "required securing for the purposes of the undertaking" ( Outar v City of New York , 5 NY3d 731 , 732). Although, in the instant case, there is uncertainty regarding the specific nature of the object that fell down the dumbwaiter shaft and struck plaintiff, it is undisputed that the subject object was not being hoisted or secured at the time it fell. Therefore, the only question is whether the object otherwise required securing.
The issue of whether or not a particular object requires securing turns on "the foreseeable risks of harm presented by the nature of the work being performed." ( Buckley v Columbia Grammar and Preparatory , 44 AD3d 263 , 268 [1d Dept 2007], lv denied 10 NY3d 710). Among the factors in determining when there is a foreseeable risk that an object will fall are whether the object is: a pre-existing condition; or, part of the structure of the building; or, part of or otherwise integral to the work. Also, it must be determined whether the nature of the work presents an inherent risk that the object will fall. Thus, in Narducci, at 268, the Court of Appeals found that no Labor Law § 240 (1) safety devices "would have been necessary or even expected" to protect workers during a renovation project from falling window glass in a fire-damaged structure, when the window was not being worked upon and was part of the preexisting building. This was true even though there was a greater risk of falling glass from a window that had been damaged by fire. ( Id. at 268). Similarly, no safety devices were required to protect workers from an elevator counterweight that unexpectedly became dislodged when the elevator was being tested. ( Buckley, 44 AD3d at 270).
Whatever struck plaintiff McLean, whether a bucket containing dried cement or a dumbwaiter counterweight, it is clear that the object was completely unrelated to microduct installation work being performed by plaintiff. The presence of the unknown object that struck plaintiff in the dumbwaiter shaft pre-existed plaintiff's work and unfortunately became dislodged while plaintiff was working in the shaft. The work of installing microduct in a dumbwaiter the shaft by itself does not create an inherent risk that an object would fall down the shaft and trigger the extraordinary protections of Labor Law § 240 (1). Therefore, plaintiff's accident did not occur under circumstances requiring a Labor Law § 240 (1) safety device. ( Narducci, 96 NY2d at 268; Buckley, 44 AD3d at 270).
To the extent that plaintiff's Labor Law § 240 (1) cause of action is premised upon the theory that defendants violated the statute for failing to provide him with proper protection against the risk that he would fall from the dumbwaiter cart, the claim must also be dismissed. There is no direct evidence that plaintiff McLean even fell from the dumbwaiter cart. Plaintiff testified in his deposition that he had no recollection of anything that occurred after he was struck by a falling object. Even if plaintiff established that he fell from the cart to the floor, Labor Law § 240 (1) is inapplicable.
In Broggy v Rockefeller Group, Inc. ( 8 NY3d 675 ), a worker fell from a four-foot high desk while washing a window abutting a desk. At no point did the worker testify that it was required for him to work at an elevation to perform this work. Rather, it appeared that "[t]he desk may have been in plaintiff's way, or it may have been easier for him to reach the top of the windows while standing on the desk, or it may have been quicker for him to climb the desk than to seek further assistance to move it. To recover under section 240 (1), however, plaintiff must establish that he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows." ( Broggy, 8 NY3d at 681). The Broggy Court found that the worker failed to meet his burden of showing that an elevation-related risk existed and dismissed his Labor Law § 240 (1) cause of action. ( Id.). Thus, "a worker must demonstrate the existence of an elevation-related hazard contemplated by the statute and a failure to provide the worker with an adequate safety device." ( Berg v Albany Ladder Company, Inc. , 10 NY3d 902 , 903).
In the instant case, there is no evidence that plaintiff was required to work at an elevation to help feed microduct up the dumbwaiter shaft. Plaintiff, in fact, testified that he asked the building superintendent to remove the cart from the shaft prior to the accident [McLean EBT, p. 109]. Then, according to plaintiff's own testimony, he stood on top of the dumbwaiter cart because it was in his way, not because he needed the extra elevation that it provided [McLean EBT, p. 115; p. 140]. Thus, Labor Law § 240 (1) does not apply to the instant action.
Therefore, those branches of the respective motions by Verizon, Linear, Mastec, Original and 405 Webster seeking summary judgment and dismissal of plaintiff's Labor Law § 240 (1) cause of action are granted. Moreover, that branch of plaintiff's motion seeking partial summary judgment on liability with respect to plaintiff's Labor Law § 240 (1) claim is denied.
Plaintiff's Labor Law § 241 (6) claim
Plaintiff McLean moves for partial summary judgment on liability with respect to his Labor Law § 241 (6) cause of action. Defendants Verizon, Linear, Mastec, 405 Webster and third-party defendant Original separately move to dismiss plaintiff's Labor Law § 241 (6) cause of action. Plaintiff, in support of his summary judgment motion, relies upon various sections of the New York State Industrial Code — 12 NYCRR §§ 23-1.7 (a), 23-1.7 (e) (2), 23-1.7 (f), 23-1.8 (c) (1) and 23-2.5 (a) (1) — asserting that these regulations apply to the instant action and are sufficiently specific to support his Labor Law § 241 (6) cause of action. Further, plaintiff argues that defendants' violations of these Industrial Code regulations caused his injuries as a matter of law.
Defendants Verizon, Linear, Mastec, 405 Webster and third-party defendant Original, in opposition to this branch of plaintiff's motion and in support of their own respective motions to dismiss this cause of action, raise numerous arguments. Specifically, as they did in support of their motions to dismiss plaintiff's Labor Law § 240 (1) claim, defendants argue that plaintiff was the sole proximate cause of his accident and/or a recalcitrant worker. In addition, Verizon and 405 Webster aver that the microduct installation work performed by plaintiff is not covered by Labor Law § 241 (6). Further, defendants argue that plaintiff's motion is defective because it fails to support its allegations with references to the voluminous evidentiary record in the instant case. Finally, defendants contend that the Industrial Code violations alleged by plaintiff are all either too general to support a Labor Law § 241 (6) claim or inapplicable given the circumstances of this case.
Labor Law § 241 (6) provides, in pertinent part, that:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places.
Labor Law § 241 (6) was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections. It places a nondelegable duty upon owners, general contractors and their agents to comply with the specific safety rules set forth by the New York Commissioner of Labor in the Industrial Code. ( Misicki v Caradonna , 12 NY3d 511 , 515; Ross, 81 NY2d at 501-502). Thus, a plaintiff, to support a cause of action under Labor Law § 241 (6), must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code regulation applicable to the given circumstances of plaintiff's accident. Industrial Code regulations set forth a concrete standard of conduct rather than a mere reiteration of common-law principles. ( Id. at 502; Ares v State, 80 NY2d 959, 960; Martinez v City of New York , 73 AD3d 993 , 996-997 [2d Dept 2010]; Ortega v Puccia , 57 AD3d 54 , 60 [2d Dept 2008]; Rivera v Santos, 35 AD3d 700 [2d Dept 2006]; Adams v Glass Fab, 212 AD2d 972, 973 [4d Dept1995]). Further, notwithstanding the nondelegable nature of the duty imposed by the statute, "[c]ontributory and comparative negligence are valid defenses to a section 241 (6) claim; moreover, breach of duty imposed by a rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence." ( Misicki at 515).
The Court, in its analysis of plaintiff's Labor Law § 241 (6) claim, must address defendants' contention that plaintiff's work at the time of his accident was not covered under Labor Law § 241 (6), as well as defendants' arguments that plaintiff was a recalcitrant worker and/or the sole proximate cause of his accident. These contentions lack merit. The Court already determined that plaintiff was engaging in "altering" the building for purposes of Labor Law § 240 (1). Accordingly, it necessarily follows that plaintiff's work also qualifies as "construction work" within the meaning of Labor Law § 241 (6). The Industrial Code defines "construction work" as "[ all] work of the types performed in construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures." ( 12 NYCRR § 23-1.4 [b] [13] [ emphasis added]; see also Joblon, 91 NY2d at 466).
The record fails to support defendants' arguments that plaintiff was a recalcitrant worker and/or the sole proximate cause of his accident. Specifically, defendants maintain that plaintiff's failure to use an available ladder was the sole proximate cause of the accident. However, plaintiff testified that he could not fit the subject ladder into the dumbwaiter shaft because of its narrow dimensions and the presence of the dumbwaiter cart in the shaft. Moreover, plaintiff's failure to use the ladder had nothing to do with the object that fell down the dumbwaiter shaft and struck plaintiff [McLean EBT, pp. 467-468]. Further, contrary to defendants' claim, plaintiff's supervisor, Thompson, did not testify that he directed plaintiff to remain outside the dumbwaiter shaft and Thompson specifically denied making such a directive [Thompson EBT, p. 248]. Rather, Thompson testified that he told plaintiff to "be careful" while working in the dumbwaiter shaft [Thompson EBT, p. 99, line 20]. Therefore, the recalcitrant worker defense is inapplicable to the instant case. Finally, since Thompson never instructed plaintiff to stay out of the dumbwaiter shaft, any testimony that plaintiff could perform the subject work while standing in the doorway to the shaft is irrelevant.
In reviewing plaintiff's motion papers for partial summary judgment on liability with respect to his Labor Law § 241 (6) claim, the Court notes that plaintiff alleges that five Industrial Code regulations were violated. This is insufficient to meet plaintiff's prima facie burden in seeking partial summary judgment on liability under Labor Law § 241 (6), because there is no legal or factual analysis explaining why these regulations are applicable given the circumstances of the accident. Further, although plaintiff's "affirmation in further support" of his motion contains a more detailed analysis of the subject regulations, as well as an expert's affidavit, these subsequent submissions are reply papers. It is well-settled that a party may not meet its prima facie burden in moving for summary judgment with evidence submitted for the first time in reply papers. ( Yeum v Clove Lakes Health Care and Rehabilitation Ctr., Inc. , 71 AD3d 739 [2d Dept 2010]; David v Byron, 56 AD3d 413, 414-415 [2 Dept 2008]).
Also, even considering all of plaintiff's submissions, plaintiff fails to establish that he is entitled to partial summary judgment on liability under Labor Law § 241 (6). The five Industrial Code regulations which plaintiff relies upon in support of his motion are either inapplicable or there are issues of fact whether the violation of these provisions is proximately related to plaintiff's injuries.
First, 12 NYCRR § 23-1.7 (a) requires that "every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection." In the instant action, there is no evidence that dumbwaiter shaft "F" was "normally exposed" to falling material or objects. ( Marin v AP-Amsterdam 1661 Park LLC , 60 AD3d 824 , 826 [2d Dept 2009]). The falling of the subject object down the shaft was an unexpected occurrence. Consequently, 12 NYCRR § 23-1.7 (a) does not apply to the instant case.
Second, 12 NYCRR § 23-1.7 (e) (2), pertaining to "tripping and other hazards" requires that working areas be kept free of debris and tools which could present a tripping hazard as well as "sharp projections." Plaintiff's accident was unrelated to any tripping hazard or sharp projection.
Third, 12 NYCRR § 23-1.7 (f) requires, in pertinent part, that "[s]tairways, ramps, or runways shall be provided as the means of access to working levels above or below ground." Plaintiff's accident was not caused by or related to any lack of stairways, ramps, or runways.
Fourth, 12 NYCRR § 23-2.5 (a) (1), pertaining to protection of persons in shafts other than elevator shafts against falling material, requires that "tight covering consisting of planks at least two inches thick full size, exterior grade plywood at least three-quarters inch thick . . . shall be installed so as to cover the entire cross-sectional area of the shaft. Such cover shall be located at a point in the shaft not more than two stories or 30 feet, whichever is less, above the level where persons are working." Plaintiff was standing in the dumbwaiter shaft at the basement level helping to guide microduct up the dumbwaiter shaft to Brailey, his co-worker, who was positioned on the third floor of the building. Thus, it is clear that placing tight planking in the dumbwaiter shaft two floors above plaintiff's position would have prevented plaintiff and Brailey from performing their work. Therefore, 22 NYCRR § 23-2.5 (a) (1) is inapplicable. ( See Boyle v 42nd Street Dev. Project, Inc. , 38 AD3d 404 , 408 [1d Dept 2007]). Further, to the extent that this regulation requires placement of such planking two stories above Brailey's position on the third floor, this would have been impossible because the building is only four stories tall.
Finally, 12 NYCRR § 23-1.8 (c) (1) requires that "[e]very person required to work or pass within any area where there is a danger of being struck by falling objects or materials . . . shall be provided with and required to wear an approved safety hat." Although this regulation is potentially applicable in this case, it cannot be said as a matter of law that a violation of this regulation caused or contributed to plaintiff's injuries. The evidence before the Court indicates that a falling object struck plaintiff in the neck area. It is unclear whether a hard hat would have deflected the subject falling object and prevented or minimized plaintiff's injuries.
Turning to defendants' respective motions to dismiss plaintiff's Labor Law § 241 (6) claim, it is clear that 12 NYCRR §§ 23-1.7 (a), 23-1.7 (e) (2), 23-1.7 (f) and 23-2.5 (a) (1) are inapplicable in this action. Therefore, to the extent that plaintiff's Labor Law § 241 (6) cause of action is based upon violations of these regulations, his claim is dismissed. Further, with the exception of 12 NYCRR § 23-1.8 (c) (1), defendants make a prima facie showing that the remaining Industrial Code provisions cited in plaintiff's pleadings — 12 NYCRR §§ 23-1.7 (a) (2), 1.7 (b), 23-1.5 (c) (3), 23-1.15, 23-1.16, 23-1.17, 23-1.22 (c), 23-2.2 (a), 2.2 (b), 23-2.5 (a) (2) and 2.5 (b) — are either too general to support a Labor Law § 241 (6) claim or inapplicable given the circumstances of this case. Plaintiff's papers do not address the majority of these Industrial Code regulations and this effectively concedes that they may not serve to support plaintiff's Labor Law § 241 (6) cause of action. Moreover, although plaintiff's papers make reference to subpart 23-5 of the Industrial Code, dealing with scaffolds, and argue that plaintiff should have been provided with a baker's scaffold, this provision is not applicable. Plaintiff's own papers point out that the presence of the dumbwaiter cart in the shaft and the dumbwaiter shaft's small dimensions demonstrate insufficient room inside the dumbwaiter shaft to allow for the placement of an A-frame ladder. This also precluded the use of a baker's scaffold. Also, the use of a scaffold would not have prevented plaintiff from being struck by the subject falling object and, as noted earlier, there is no evidence that plaintiff actually fell from the top of the dumbwaiter cart.
With respect to 12 NYCRR § 23-1.8 (c) (1), as noted above, the Court finds that there are issues of fact whether this regulation is applicable to the instant case. Accordingly, to the extent that plaintiff relies upon this regulation, the motions seeking to dismiss plaintiff's Labor Law § 241 (6) cause of action must be denied. 12 NYCRR § 23-1.8 (c) (1) requires that workers wear a safety hat as head protection when passing or working in "any area where there is a danger of being struck by falling objects or materials." It is undisputed that plaintiff was not wearing a hard hat at the time of the accident. However, contrary to defendants' argument, the fact that the dumbwaiter shaft was not an area "normally exposed" to falling materials or objects for purposes of 12 NYCRR § 23-1.7 (a) (1) does not mean that there was no "danger" of being struck by such objects for purposes of 12 NYCRR § 23-1.8 (c) (1). ( Marin, 60 AD3d at 826). In this regard, the dumbwaiter shaft had been out of use for years. Moreover, although 12 NYCRR § 23-2.5 (a) (1) is inapplicable in the instant action due to the nature of the work and respective positions of plaintiff and Brailey in the dumbwaiter shaft, the Industrial Code normally requires that workers in shafts be protected against falling objects suggesting that the danger of being struck by falling objects while in a shaft does exist.
Defendants also fail to establish that plaintiff's lack of head protection did not play a role in the injuries he sustained when he was struck by the subject falling object. Defendants rely upon Thompson's deposition testimony that when he observed plaintiff on the basement floor, after the accident, he did not see any injuries that would have been prevented by a hard hat [Thompson EBT, pp. 148-149]. However, Thompson did not witness the accident. Nor is there anything in the record which indicates that Thompson possesses the requisite medical and workplace safety qualifications to offer an informed opinion regarding this issue. Further, Thompson also testified that plaintiff told him that he had a headache [Thompson EBT, p. 148]. The hospital emergency room records submitted by plaintiff indicate an injury "to posterior lower scalp, oozing blood" and list the "final diagnoses" as "head and neck trauma."
Defendants' argument that 12 NYCRR § 23-1.8 (c) (1) was not violated because plaintiff was provided with a hard hat, lacks merit. This argument is based upon Lewis' testimony that "everyone" had hard hats [Lewis EBT, p. 162]. However, the subject regulation does not just require that workers be provided with hard hats, but requires that the workers wear these hard hats when the danger of being struck by falling objects exists. It is undisputed that plaintiff was not wearing a hard hat while working in dumbwaiter shaft "F" and there is no evidence that Thompson, his supervisor, required that he do so.
Therefore, those branches of the respective motions of Verizon, Linear, Mastec, Original and 405 Webster seeking summary judgment and dismissal of plaintiff's Labor Law § 241 (6) claim are denied to the extent that plaintiff relies upon a violation of 12 NYCRR § 23-1.8 (c) (1) and granted to the extent that plaintiff relies upon the remaining Industrial Code provisions cited in his pleadings. Moreover, that branch of plaintiff's motion seeking partial summary judgment on liability with respect to plaintiff's Labor Law § 241 (6) cause of action is denied.
Plaintiff's Labor Law § 200 claim
405 Webster, Linear, Mastec and Verizon separately move to dismiss plaintiff's Labor Law § 200 and common-law negligence claims against them. Also, Original cross-moves to dismiss plaintiff's Labor Law § 200 and common-law negligence claims against defendants, relying upon arguments raised by Linear and Mastec in their respective motions. These parties assert that they did not control or supervise plaintiff's microduct installation work and did not create or have notice of any dangerous condition in the dumbwaiter shaft that caused plaintiff's accident. Linear and Verizon raise the additional argument that they owed no duty of care to plaintiff, noting that any duty they had with respect to the premises was contractual, not giving rise to tort liability in favor of a third-party, such as plaintiff McLean.
Plaintiff, in opposition to these motions, observes that in a preconstruction "walkthrough" meeting held at the building between representatives of 405 Webster, Verizon, Mastec and Linear, the representatives of these parties discussed running microduct from the basement to the apartments though the dumbwaiter shafts. There is evidence that these representatives were concerned about the safety of using dumbwaiter shafts. Plaintiff cites the deposition testimony of Mastec's Project Manager, Christopher De Milio, who testified that Gifford, 405 Webster's President, represented to the parties during the walkthrough that all dumbwaiter shafts were clear [De Milio EBT, p. 85]. Further, De Milio testified that he inspected one of the dumbwaiter shafts and found it to be clear of its components [De Milio EBT, p. 85]. However, De Milio did not inspect the other dumbwaiter shafts [De Milio EBT, pp. 219-220]. He testified that if knew that the other dumbwaiter shafts were obstructed he would not have allowed the work to proceed. The following colloquy took place in De Milio's EBT, at p. 220, line 13 — p. 221, line 15:Q:When you looked at that one dumbwaiter shaft and you looked inside, were you able to see inside the dumbwaiter shaft?
A: Yeah. We opened the door and looked in and it was empty. I mean, it wasn't clean on the floor. It wasn't spotless, but there wasn't any wood or ropes in there. I would have pulled the plug right there.
Q: When you say you would have pulled the plug, what do you mean?
A: We would never went down the dumbwaiter shaft. If they would have told me, we would have shut it down and redesigned it.
Q: You would not have allowed a Linear Technologies person there?
A: Absolutely not.
Q: You would not have allowed an Original Communications person in there?
A: No.
Q: Why?
A: That's a hazard.
Q: Why?
A: Because all that wood, metal, all that rope, that's dangerous. I would not allow a job to go forward with those obstructions in a dumbwaiter shaft.
Plaintiff's opposition papers to defendants' motions note that it is uncontroverted that dumbwaiter shaft "F," where the accident took place, was not clear. Ropes and an old dumbwaiter cart were present.
Also, plaintiff cites the deposition testimony of Linear's witness, Lawrence Mason. Mason testified that he would have preferred to run the microduct using hallway molding, instead of using dumbwaiter shafts, because it would have been safer [Mason EBT, pp. 154-159]. However, according to Mason, Gifford, the building owner, insisted that the microduct be run up the dumbwaiter shafts and "I was not allowed to argue those points [Mason EBT, p. 160, lines 9-10]." Mason also testified that he did not inspect the dumbwaiter shafts [Mason EBT, p. 142].
Therefore, plaintiff argues that there are triable issues of fact whether defendants violated Labor Law § 200 because defendants failed to inspect dumbwaiter shaft "F" prior to the commencement of microduct installation work, notwithstanding the known hazards of working in an old, abandoned dumbwaiter shaft.
With respect to 405 Webster, plaintiff argues that there is evidence that it exercised control and supervision over the manner in which he performed his work. Plaintiff claims that the building superintendent told him that the dumbwaiter cart could not be removed from the shaft and told him to stand on top of the cart. [McLean EBT, p. 109; pp. 114-115; pp. 528-529].
Labor Law § 200 "codifies the common-law duty of an owner or employer to provide employees with a safe place to work . . . [and] applies to owners, contractors or their agents . . . who exercise control or supervision of the work, or either created the allegedly dangerous condition or had actual or constructive notice of it." ( Young Ju Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2d Dept 2000]). ( See Jock v Fien, 80 NY2d 965, 967; Navarro v City of New York, ___ AD3d ___, 2010 NY Slip Op 06162 [2d Dept July 20, 2010]; Schultz v Hi-Tech Construction Management Services, Inc., 69 AD3d 701 [2d Dept 2010]; Chowdhury v Rodriguez , 57 AD3d 121 , 127-128[2d Dept 2008]; Wein v Amato Properties, LLC , 30 AD3d 506 [2d Dept 2006]; Bradley v Morgan Stanley Co., Inc. , 21 AD3d 866 , 868). "Where a premises condition is at issue, property owners [and contractors] may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." ( Ortega v Puccia , 57 AD3d 54 , 61 [2d Dept 2008]). On the other hand, "when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had authority to supervise or control the performance of the work." ( Id.). Absent such authority, no liability attaches even when the owner or general contractor has notice of the unsafe manner in which the work was performed. ( Id.).
The Court rejects Linear and Verizon's arguments that they owed no duty of care to plaintiff because their obligations are contractual and they cannot have any tort liability in favor of a third party, plaintiff McLean. Both Linear and Verizon rely upon Espinal v Melville Snow Contr., Inc. ( 98 NY2d 136) and its progeny. However, Espinal does not apply to a Labor Law case such as the instant matter, in which Verizon was retained by 405 Webster to install FiOS in the building. Verizon delegated part of this work, the microduct installation, to Mastec, which then delegated the work to Linear, which then delegated the work to plaintiff's employer, Original. Verizon, Mastec and Linear are all subject to liability under the Labor Law as contractors and/or statutory agents. ( Inga v EBS North Hills, LLC , 69 AD3d 568 , 569-570 [2d Dept 2010]; Ragone v Spring Scaffolding Inc. , 46 AD3d 652 , 654 [2d Dept 2007]). Therefore, in the instant action, both Linear and Verizon had a duty to provide plaintiff McLean with a safe place to work under Labor Law § 200.
Turning to the substance of plaintiff's Labor Law § 200 and common-law negligence claims against 405 Webster, Verizon, Mastec and Linear, the Court notes that the underlying accident arose out of a dangerous condition in the dumbwaiter shaft, a loose and unsecured heavy object positioned above the area where plaintiff was working in the dumbwaiter shaft. When an accident is caused by a dangerous condition, an owner and/or contractor may, as a general rule, be found to have breached their duty to provide a safe place to work when they either created or had notice of the underlying dangerous condition. However, part of the duty to provide a safe place to work is the duty to make reasonable inspections to detect unsafe conditions. ( Minorcyzk v Dormitory Authority of State, 74 AD3d 675 [1d Dept 2010]; Seda v Epstein, 72 AD3d 455 [1d Dept 2010]; Urban v No. 5 Times Square Dev., LLC, 62 AD3d 553, 555 [1d Dept 2009]; Dabolt v Bethlehem Steel Corp., 92 AD2d 70, 73 [4d Dept 1983], lv dismissed appeal dismissed 60 NY2d 701). This is particularly true where there is a "known risk" that an unsafe condition that is not open and obvious may exist. ( Hayes v Riverbend Housing Co., Inc. , 40 AD3d 500 , 501 [1d Dept 2007]; Personius v Mann , 20 AD3d 616 , 619 [3d Dept 2005, Lahtinen J., concurring in part and dissenting in part], affd as modified 5 NY3d 857, 859).
The Court, in viewing evidence in the light most favorable to plaintiff, finds that there are triable issues of fact whether defendants 405 Webster, Verizon, Mastec and Linear violated Labor Law § 200 and were negligent by failing to conduct a reasonable inspection of the dumbwaiter shaft prior to the microduct installation work. The evidence indicates that prior to the accident, representatives from Verizon (Dacosta Mayne), Mastec (Christopher De Milio), and Linear (Lawrence Mason) conducted a "walkthrough" survey of the building with Gifford, the President of 405 Webster, to determine how the FiOS cable would be installed in the premises. Gifford, according to the deposition testimony of Mayne, De Milio and Mason insisted that the FiOS cable be installed in the building using the dumbwaiter shafts as opposed to running the wires along the building's hallways and concealing it with molding. Moreover, De Milio and Mason testified that they were concerned with potential safety hazards by using dumbwaiter shafts which had been out of use for years. De Milio testified that he would have "pulled the plug [De Milio EBT, p. 220, line 10]" on the installation work if he was aware that some of the shafts contained old dumbwaiter components and equipment. Plaintiff's supervisor, Bruce Thompson, testified that he was concerned with the safety of using dumbwaiter shafts. However, he was informed by Kevin Lewis, Original's owner, that "we'll inspect and see what we need to do and see if everything is okay and if it's not, then we'll just ask [Linear] to come change the diagram [Thompson EBT, p. 152, lines 8-11]." Further, Thompson acknowledged that Shaft "F" "wasn't all that great" and "we just got to be careful when we do the installs because we don't know what's going on here [Thompson EBT, p. 103, lines 19 and 21-24]."
There is evidence, notwithstanding safety concerns regarding risks associated with using dumbwaiter shafts for microduct installation, that defendants did not inspect dumbwaiter shaft "F." De Milio, in particular, testified that one shaft was inspected and found to be clear, but the other five shafts were not inspected after Gifford stated that they were also clear [De Milio EBT, p. 85]. Mayne testified that he could not recall whether or not the shafts were inspected [Mayne EBT, pp. 275-276]. Mason testified that he did not inspect the shafts [Mason EBT, pp. 240-241].
Therefore, those branches of the motions of 405 Webster, Verizon, Mastec and Linear seeking summary judgment and dismissal of plaintiff 's Labor Law § 200 and common-law negligence claims against them are denied.
405 Webster's motion for contractual indemnification
405 Webster moves for summary judgment on its contractual indemnification claims against Linear and Original, relying upon the identical indemnification clauses in ¶ 16 of the contract between Mastec and Linear and in ¶ 16 of the contact between Linear and Original. The former clause requires Linear indemnify Mastec and "Owner . . . from and against all claims, damages, liability losses, penalties, and expenses . . . incurred or suffered, directly or indirectly . . . by the indemnitees and arising out of or resulting from . . . the performance or quality of the Work" and the later clause requires Original indemnify Linear and "Owner . . . from and against all claims, damages, liability losses, penalties, and expenses . . . incurred or suffered, directly or indirectly . . . by the indemnitees and arising out of or resulting from . . . the performance or quality of the Work."
405 Webster claims that it is a third-party beneficiary to these two contracts, with both clauses demonstrating that Linear and Original agreed to indemnify 405 Webster for any accidents that occurred during FiOS installation work at the building. Further, 405 Webster contends that these clauses are fully enforceable because there is no evidence that the negligence of 405 Webster played a role in the accident. In support of this, 405 Webster claims that the deposition testimony of Gifford, 405 Webster's President, establishes that Verizon, Mastec and Linear made the decision to run microduct up the dumbwaiter shafts. Moreover, 405 Webster points out that Gifford: fully informed these parties that the dumbwaiter shafts were inactive when 405 Webster purchased the building approximately twenty years earlier; and, made no representation that the dumbwaiter shafts were safe. Accordingly, 405 Webster argues that it cannot be held responsible for any dangerous condition in the dumbwaiter shaft or for any negligence in the decision to use the dumbwaiter shafts for microduct installation.
Linear, in opposition to 405 Webster's motion, notes that 405 Webster is not identified in the contract between Mastec and Linear and the term "owner" is not defined in the contract. Further, Linear maintains that the term "owner" could just as easily apply to Verizon as the owner of the project and there is no clear indication that the parties to the contract, Mastec and Linear, intended to indemnify 405 Webster. Moreover, Linear argues that the failure to specifically identify 405 Webster as the "owner" demonstrates that the parties did not intend to indemnify 405 Webster. Thus, Linear contends that 405 Webster's motion for contractual indemnification must be denied because there are issues of fact regarding whether 405 Webster's negligence played a role in the accident. Linear notes that numerous witnesses testified that Gifford insisted that the microduct and the FiOS cable be installed by using the abandoned dumbwaiter shafts in the building.
Original, in its opposition to 405 Webster's motion for contractual indemnification, adopts Linear's arguments. Additionally, Original argues that the indemnification clause in the contract between Linear and itself is unenforceable, pursuant to General Obligations Law (GOL) § 5-322.1, because it would allow 405 Webster to be indemnified for its own negligent conduct. GOL § 5-322.1 (1) states, in relevant part:
A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable. [ Emphasis added].
Therefore, "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 2008]). ( See Mancione v City of New York, ___ AD3d ___, 2010 NY Slip Op 06078 [2d Dept July 13, 2010]; Resiman v Bay Shore Union Free School District, 74 AD3d 772 [2d Dept 2010]; Tarpey v Kolanu Partners, LLC , 68 AD3d 1099 [2d Dept 2009]). 405 Webster submitted an affidavit by Gifford, in which, among other things, he denies that he insisted that the microduct be run up the dumbwaiter shafts or represented that the dumbwaiter shafts were clear. There are issues of fact about who decided to run microduct up the dumbwaiter shafts and if the shafts were inspected and clear. Moreover, in the context of a summary judgment motion, the Court must resolve conflicting versions of the facts in favor of the nonmoving parties, which in this instance are Linear and Original. 405 Webster "must prove itself free from negligence" for purposes of its summary judgment motion on contractual indemnification and has not done so. "Where a question of fact exists regarding . . . negligence . . . [an] order of summary judgment for contractual indemnification must be denied as premature." ( Bellefleur v Newark Beth Israel Med. Ctr. , 66 AD3d 807 , 808-809 [2d Dept 2009]). ( See George v Marshalls of MA, Inc. , 61 AD3d 925 , 930 [2d Dept 2009])
Also, it is well-settled that "[w]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which parties did not intend to be assumed." ( Hooper Assoc. v AGS Computers, 74 NY2d 487, 491). ( See also Tonking v Port Auth. of NY N.J. , 3 NY3d 486 ). 405 Webster, in the instant action, fails to demonstrate that Linear or Original intended to assume a duty to indemnify it. Although the subject indemnification clauses stated that Linear and Original had to indemnify the "owner," nowhere is 405 Webster specifically identified as the "owner" in the underlying contracts. The Court already determined that there is an issue of fact whether 405 Webster was negligent because of evidence that: 405 Webster's President insisted that microduct be installed in the dumbwaiter shafts; there were concerns regarding the safety of these shafts; 405 Webster did not inspect the shafts prior to the work; and, 405 Webster inaccurately represented to the contractors on the job that all the dumbwaiter shafts were clear. Therefore, 405 Webster's motion for summary judgment on its contractual indemnification claims against Linear and Original is denied.
Linear's motion for contractual indemnification
Linear moves for summary judgment on its contractual indemnification claim against Original, relying upon the indemnification clause, ¶ 16, in the contract between the parties, Linear and Original. Specifically, the clause provides that "[Original] will indemnify, defend, and hold harmless [Linear] . . . from and against all claims, damages, liability losses, penalties, and expenses . . . incurred or suffered, directly or indirectly . . . by the indemnitees and arising out of or resulting from . . . the performance or quality of the Work." Linear alleges that since it is undisputed that the accident arose from Original's work installing microduct, the subject clause requires that Original indemnify it and that the contractual indemnification clause is fully enforceable because there is no evidence that its own negligence caused the accident.
Original, in opposition to Linear's motion, argues that the indemnification clause is unenforceable, pursuant to GOL § 5-322.1, claiming it would allow Linear to be indemnified for its own negligence.
As discussed above, a party seeking summary judgment on a contractual indemnification claim must first establish that its own negligence did not play a role in the underlying accident. ( Cava Constr. Co., Inc. 58 AD3d at 662). If there is a question of fact as to negligence then "summary judgment for contractual indemnification must be denied as premature." ( Bellefleur, 66 AD3d at 808-809). While it is clear that the subject clause requires that Original indemnify Linear, the Court already determined that there are issues of fact whether Linear's own negligence contributed to the accident. There is evidence that: Linear took part in a "walkthrough" survey of the building prior to the installations work; Linear's representative at this survey was aware of the potential safety hazards associated with using abandoned dumbwaiter shafts; and, Linear failed to conduct any inspection of dumbwaiter shaft "F." Under the circumstances, Linear's motion for summary judgment against Original on its contractual indemnification claim must be denied. There are factual issues whether Linear's own negligence played a role in the accident.
Original's cross-motion to dismiss Linear's and 405 Webster's contractual indemnification claims
Original, in addition to opposing Linear and 405 Webster's respective motions for contractual indemnification against it, cross-moves for summary judgment dismissing these claims, arguing that the indemnification clauses relied upon by Linear and 405 Webster violate GOL § 5-322.1 by allowing Linear and 405 Webster to be indemnified for their own negligence. Original notes that the indemnification clause does not contain language which limits the right to indemnification "to the fullest extent allowed by law."
Linear and 405 Webster, in opposition to this branch of Original's cross motion, make several points. They argue that the subject indemnification clause states that "[Original] will indemnify, defend and hold harmless the Indemnitees to the fullest extent [Mastec] is required to indemnify, defend and hold harmless [Verizon] under the Primary Contract." Linear and 405 Webster note that under the indemnification clause in the primary contract, Mastec is required to indemnify Verizon "but not for claims which arise from the sole negligence, misconduct or other fault of Verizon." Thus, 405 Webster and Linear argue that the indemnification clause in the contract between Linear and 405 Webster is limited. Additionally, Linear and 405 Webster assert that the subject indemnification clause conditions Original's obligation to indemnify upon a breach by Original, and does not purport to indemnify Linear or 405 Webster for their own acts or omissions. Finally, 405 Webster argues that even if the subject indemnification provision violates GOL § 5-322.1 on its face, it will only be rendered unenforceable to the extent that there is an actual finding of negligence against the indemnitees. In the instant action, no such finding has been made.
It is well-settled that even when an indemnification clause violates GOL § 5-322.1 on its face the clause remains enforceable as long as the party seeking indemnification is free from actual negligence. ( Itri Brick Concrete Corp. v Aetna Cas. Sur. Co., 89 NY2d 786, 795 n 5 [1997]; Brown v Two Exchange Plaza Partners, 76 NY2d 172, 179). Thus, a party seeking summary judgment dismissing a contractual indemnification claim based upon GOL § 5-322.1 must establish that the party seeking indemnification was actually negligent. ( Powell v CVS Jerusalem North Bellemore, LLC , 71 AD3d 655 [2d Dept 2010]; Keating v Nanuet Bd. of Educ. , 40 AD3d 706 , 708 [2d Dept 2007]; Watters v R.D. Branch Associates , 30 AD3d 408 , 409 [2d Dept 2006]). In the instant action, although there are issues of fact whether Linear and/or 405 Webster were negligent and if so the role it played in plaintiff McLean's accident, such alleged negligence has not been established as a matter of law. Therefore, Original's cross-motion for summary judgment dismissing Linear and Original's contractual indemnification claims against it is denied.
Original's cross-motion to dismiss Linear's and 405 Webster's common-law indemnification claims against Original
Original cross-moves for summary judgment and dismissal of common-law indemnification claims against it by 405 Webster and Linear, arguing that plaintiff McLean applied for and received Workers' Compensation benefits, and claiming that all common-law indemnification claims must be dismissed against it because Original was plaintiff McLean's employer. In the alternative, Original asserts that there is no basis for any common-law indemnification claims against it because it was not negligent and it did not create or have notice of any dangerous condition in dumbwaiter shaft "F," the location of plaintiff McLean's accident.
Workers' Compensation Law (WCL) § 11 precludes all common-law indemnification claims against an injured plaintiff's employer unless it can be shown "through competent medical evidence that such an employee [plaintiff]" sustained a "grave injury":
which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.
An employer seeking summary judgment dismissing common-law indemnification claims against it, pursuant to WCL § 11, bears the prima facie burden of establishing that the plaintiff's alleged injury was not a "grave injury" as defined in WCL § 11. ( Keating v Nanuet Bd. of Educ., 40 AD3d at 709). ( See Rubeis v Aqua Club, Inc. , 3 NY3d 408 , 412-413; Schuler v Kings Plaza Shopping Center and Marina, Inc., 294 AD2d 556, 559 [2d Dept 2002]). Original, in the instant action, fails to meet this prima facie burden. Its motion papers state in conclusory fashion that because plaintiff is receiving Workers' Compensation benefits all common-law indemnification claims against it must be dismissed. The motion papers do not mention WCL § 11, the term "grave injury," any legal analysis regarding "grave injury," and any evidence that supports summary judgment and dismissal of common-law indemnification claims against Original.
The Court, with respect to Original's alternative argument, finds that there are issues of fact whether Original's negligence contributed to plaintiff's accident. It is undisputed that plaintiff's work was controlled and supervised by his Original supervisor, Bruce Thompson. Further, Kevin Lewis, Original's President and owner, admitted at his deposition that he failed to conduct a proper inspection of the dumbwaiter shafts prior to commencement of the work. It is uncontroverted that plaintiff McLean was not wearing a hard hat at the time of the accident and Thompson did not require plaintiff to do so. Therefore, Original failed to demonstrate that it is entitled to dismissal of the common-law indemnification and contribution claims against it. ( Weitz v Aztek Constr. Corp., 65 AD3d 678, 681 [2d Dept 2009]). ( See Erickson v Cross Ready Mix, Inc., ___ AD3d ___, 2010 NY Slip Op 06073 [2d Dept July 13, 2010]). "An award of summary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to the parties ( see Coque v Wildflower Estates Developers, Inc. , 31 AD3d 484 [2d Dept 2006]; La Lima v Epstein, 143 AD2d 886, 888 [2d Dept 1988])." ( Aragundi v Tishman Realty Construction Co., Inc. , 68 AD3d 1027 , 1020 [2d Dept 2009]).
Mastec's motion for summary judgment and dismissal of common-law indemnity claims against Mastec
Mastec moves for summary judgment dismissing all common-law indemnity and contribution claims against it, noting that for a party to prevail on a motion for summary judgment and dismissal of common-law indemnification or contribution claims against it there must be "a prima facie showing that it was free from negligence in the happening of the accident." ( Weitz v Aztek Constr. Corp., 65 AD3d at 681). According to Mastec, there is no evidence that it was negligent in the occurrence of plaintiff McLean's accident.
The Court already determined that there are issues of fact regarding whether Mastec's negligence was a contributing factor in plaintiff's accident. Christopher De Milio, Mastec's Project Manger, as previously mentioned, testified at his deposition that he had serious concerns regarding the safety of using abandoned dumbwaiter shafts to run microduct and would not have allowed the work to proceed if he was aware that the dumbwaiter shafts were not clear. De Milio admitted, despite these concerns, that he failed to inspect dumbwaiter shaft "F," where plaintiff McLean's accident occurred, during the "walkthrough" survey of the building, prior to commencing the microduct installation work. Therefore, Mastec's motion for summary judgment and dismissal of all common-law indemnification and contribution claims against it must be denied.
Linear's insurance coverage
Defendant Linear moves for summary judgment on its cross-claim against second third-party defendant National Grange and for an order declaring that National Grange defend and indemnify Linear in the instant action, pursuant to the "additional insured" endorsement in Original's insurance policy with National's Grange. Meanwhile, National Grange cross-moves for summary judgment and dismissal of Linear's cross-claim seeking defense and indemnification from National Grange as an additional insured, pursuant to Original's insurance policy with National Grange.
Linear, in support of its summary judgment motion, claims that a clause in its contract with Original required Original to obtain liability insurance listing Linear as an additional insured and Original's insurance policy with National Grange has an endorsement providing additional insured coverage to parties with whom Original is contractually obligated to provide coverage. Original's insurance policy with National Grange contains a "Contractor's Extension Endorsement," which added to Original's liability coverage:
Any general contractor, subcontractor, or owner for whom you are required to add as an additional insured on this policy under a written construction contract or agreement where a certificate of insurance showing that person or organization as an additional insured has been issued and received by us' prior to the time of loss. The written contract and agreement must be: (1) in effect or become effective during the term of this policy; and (2) executed prior to the "occurrence" resulting in "bodily injury", "property damage", "personal injury", or "advertising injury." [ Emphasis added].
It is undisputed that Original secured a certificate of insurance naming Linear as an additional insured prior to plaintiff McLean's accident. Thus, Linear concludes that it is an additional insured under Original's policy with National Grange.
Linear, in further support of its motion, notes that in a letter, dated November 7, 2007, from National Grange's claim representative, Stacey McLaughlin, to Linear's primary carrier, Travelers, National Grange denied Traveler's tender on behalf of Linear because of its interpretation of a policy clause, which states:
The additional insured is an additional insured only for its vicarious liability for your acts or omissions which arise from your ongoing construction operations performed for that additional insured. The additional insured is not insured for liability due to its independent acts or for any supervision of "your work" or the work of any other person or organization. [ Emphasis added].
Also, Ms. McLaughlin stated that this additional insured clause limited Linear's coverage to any vicarious liability it faced as a result of Original's negligence and to National Grange it appeared that "[n]o coverage would be available for your [Linear's] own active negligence." Ms. McLaughlin concluded that National Grange decided to "respectfully deny your tender based upon your insured's active negligence." However, Linear argues that this interpretation of the additional insured clause is incorrect. Linear's counsel states, in ¶ 94 of his affirmation in support of Linear's motion, and again verbatim, in ¶ 88 of his affirmation in opposition to National Grange's cross-motion and rely, that:
This provision does not solely limit coverage to Linear based on its "vicarious liability." Since the word "or" separates the limitation [sic]. It can be reasonably interpreted that one is an additional insured not only for its vicarious liability from the "acts" of Original but also from the omissions of Original which arise from its acts. If the policy was meant to have vicarious liability as the only means of coverage, they would not have used the word "or" to allow for other coverage.
Further, Linear asserts that the intent of the parties in the contract between itself and Original was to provide Linear with full coverage, so that Linear is owed both a defense and indemnity by National Grange, since plaintiff McLean made claims that Linear is vicariously liable, pursuant to Labor Law §§ 240 (1) and 241 (6).
National Grange, in opposition to Linear's motion, and in support of its own cross-motion to dismiss Linear's cross-claim, maintains that the subject policy clause unambiguously limits coverage to Linear for vicarious liability it faced as a result of Original's acts or omissions and the subject policy does not provide Linear with coverage for its own negligence. Further, National Grange notes that plaintiff McLean's original complaint sounded solely in negligence and then, when amended, in October 2008, after plaintiff McLean obtained leave from the Court to serve an amended summons and complaint, asserted vicarious liability claims, pursuant to Labor Law §§ 240 (1) and 241 (6), against Linear. National Grange claims its November 2007 rejection of Linear's tender was entirely appropriate because its policy did not cover Linear for its own negligence and the only claims then asserted against Linear were for negligence. Further, National Grange notes that after service of the amended summons and complaint, Linear did not tender to National Grange, based upon the new allegations of Linear's vicarious liability, pursuant to Labor Law §§ 240 (1) and 241 (6).
National Grange, in the alternative, argues that even if Linear is covered as an additional insured under the National Grange policy, this coverage is excess to Linear's coverage under its Travelers' policy. In support of this argument, National Grange claims that the "other insurance" clause in the National Grange policy provides that the policy is excess to any other insurance carrier providing coverage.
Linear, in its reply in support of its motion and affirmation in opposition to National Grange's cross-motion, argues that the amended complaint does not change the facts of the accident. Further, Linear points out that National Grange was a party to the action at the time the complaint was amended and cannot now argue that it was unaware of the amendment. Linear avers that since National Grange disclaimed coverage in November 2007 based upon Linear's purported negligence, it is not entitled to be provided with a subsequent tender. Finally, Linear claims that the National Grange policy is not excess to Linear's policy with Travelers, noting that the Travelers' policy contains an "other insurance" clause in which the policy is excess to any other insurance policy providing "protection to [Linear] as an additional insured or additional protected person." Thus, Linear argues that with both policies containing matching "other insurance" clauses, both National Grange and Travelers must share Linear's insurance costs.
The Court finds that Linear's argument, that the National Grange policy provides coverage to additional insureds such as Linear for accidents caused by their own negligence, lacks merit. The National Grange policy unambiguously states that additional insureds, such as Linear, are only covered for vicarious liability which arises out of the acts or omissions of the named insured, Original. Any doubt is resolved by the last sentence of the National Grange policy clause, stating that "[t]he additional insured is not insured for liability due to its independent acts or for any supervision of your work' or the work of any other person or organization." Therefore, with the Court having determined that there is an issue of fact whether Linear's independent acts were a contributing factor in plaintiff McLean's accident, to the extent that Linear is ultimately found to be liable for this negligence, the National Grange policy does not provide coverage to Linear. ( See Kruger v CNA Ins. Co., 242 AD2d 566, 567 [2d Dept 1997]).
However, with the Court having also determined that plaintiff McLean has a viable Labor Law § 241 (6) claim against Linear, Linear faces potential vicarious liability in the instant action and National Grange does not dispute that its policy covers such liability. National Grange maintains that Linear failed to comply with the policy's notice requirements, because it never apprised National Grange of the change in circumstances by providing National Grange with a copy of the amended summons and complaint or by serving it with a new tender. The Court finds this argument lacks merit. Although it does not appear that National Grange was served with the amended summons and complaint, it was a party to the instant action when the complaint was amended and was fully aware of the underlying facts of the case. Further, National Grange was served with answers to the amended complaint, putting it on notice that additional claims had potentially been added against Linear. Finally, National Grange never disclaimed coverage to Linear based upon Linear's failure to advise it of vicarious liability claims asserted against Linear in the amended complaint, notwithstanding that National Grange had been aware of these claims since at least October 23, 2009, when National Grange was served with plaintiff McLean's instant summary judgment motion and exhibits. Thus, National Grange's failure to provide notice of its disclaimer as soon as is reasonably possible precludes an effective disclaimer at this point, even if Linear's notice of the amended complaint was untimely. (Insurance Law § 3420 [d] [2]; Mid City Constr. Co., Inc. v Sirus America Ins. Co. , 70 AD3d 789 , 790 [2d Dept 2010]).
Therefore, inasmuch as the National Grange policy provides coverage to Linear for vicarious liability it faces as a result of Original's actions, but does not afford Linear coverage for Linear's own negligence, and there is both a vicarious liability claim, under Labor Law § 241, and a negligence claim pending against Linear, both the instant motion of Linear and the instant cross-motion of National Grange with respect to declaratory relief on indemnification are denied as premature. Any ruling regarding National Grange's obligation to indemnify Linear must await the determination by the trier of fact regarding Linear's liability or lack thereof, under Labor Law § 241 (6), Labor Law § 200 and common-law negligence.
The Court notes, with respect to the issue of primary and excess coverage, Linear's primary carrier, Travelers, is not a party to the instant action, which it should be prior to any ruling on insurance coverage priority. Until a determination is made whether of not National Grange's policy affords coverage to Linear, any ruling on coverage priority between the National Grange policy and the Travelers' policy is premature. "In order to determine the priority of coverage among different policies, a court must review and consider all of the relevant policies at issue ( see State Farm Fire Cas. Co. v LiMauro, 65 NY2d 369) . . . because none of the other insurance carriers are parties to this declaratory judgment action and no other relevant policies have been submitted, the priority of coverage cannot be determined." ( BP A.C. Corp. v One Beacon Ins. Group , 8 NY3d 708 , 716).
Finally, whether or not National Grange is obligated to defend Linear, "an insurer's duty to defend is broader than its duty to indemnify, and arises whenever the allegations in the complaint in the underlying action, construed liberally, suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing such a reasonable possibility." ( Rhodes v Liberty Mut. Ins. Co. , 67 AD3d 881 , 882 [2d Dept 2009]). Recently, the Court of Appeals instructed, in Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA ( 15 NY3d 34 , 37, that:
An insurer's duty to defend its insured is "exceedingly broad" ( BP A.C. Corp. v One Beacon Ins. Group , 8 NY3d 708 , 714 [2007], quoting Automobile Ins. Co. of Hartford v Cook, 7NYed 131, 137 [2006]). An "insurer will be called upon to provide a defense whenever the allegations of the complaint suggest . . . a reasonable possibility of coverage" ( id., quoting Cook, 7 NY3d at 137 [internal quotation marks omitted]). "If [a] complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend" ( id., quoting Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73 [1989] [internal quotation marks omitted]). This standard applies equally to additional insureds and named insureds ( see id. at 714-715, citing Pecker Iron Works of NY v Traveler's Ins. Co., 99 NY2d 391, 393 [2003]).
There is, in the instant action, a reasonable possibility that National Grange's policy will provide coverage to Linear if Linear is found vicariously liable for Original's actions under Labor Law § 241 (6). Therefore, Linear is entitled to an order declaring that National Grange is obligated to share with Linear's liability carrier, Travelers, the costs of defending Linear in the underlying action.
405 Webster's insurance coverage
Defendant 405 Webster moves for an order declaring that second third-party defendant National Grange defend and indemnify 405 Webster in the instant action, pursuant to the "additional insured" endorsement in Original's insurance policy with National Grange. Meanwhile, National Grange cross-moves for summary judgment and dismissal of 405 Webster's second third-party action which seeks defense and indemnification as an additional insured pursuant to Original's insurance policy with National Grange.
405 Webster, in support of its motion, notes that National Grange's named insured, Original, entered into a contract with Linear which required Original to obtain liability insurance covering the building owner as an additional insured. Further, 405 Webster argues that the National Grange policy with Original specifically contains a "Contractor's Extension Endorsement," which added to Original's liability coverage "[a]ny general contractor, subcontractor, or owner for whom you are required to add as an additional insured on this policy under a written construction contract or agreement." Thus, 405 Webster maintains that it is an additional insured and entitled to a defense and indemnification, pursuant to Original's policy with National Grange.
In addition, 405 Webster claims that National Grange admitted it is obligated to defend 405 Webster in the McLean action, pointing to Stacey McLaughlin's May 15, 2008 letters, on behalf of National Grange, in response to 405 Webster's tender. Ms. McLaughlin, in her first letter to 405 Webster's counsel on May 15, 2008, stated "[a]s we recognize the duty to defend is greater than the duty to indemnify, we will offer to pay 50% of the defense costs for 405 Webster . . . as an additional insured under our policy." Then in a second letter to 405 Webster's counsel, on the same day, Ms. McLaughlin stated "[w]e now recognize that there may be multiple parties providing defense and therefore withdraw our 50% defense offer. We will agree to pay the defense costs based on a proportionate share of all parties that provide coverage."
National Grange, in opposition to 405 Webster's motion and in support of its own cross-motion for an order dismissing 405 Webster's claims against National Grange for defense and indemnification, raises several arguments. First, National Grange notes that the additional insured clause in its policy states that it provides coverage for:
Any general contractor, subcontractor, or owner for whom you are required to add as an additional insured on this policy under a written construction contract or agreement where a certificate of insurance showing that person or organization as an additional insured has been issued and received by "us" prior to the time of loss. [ emphasis added].
It is undisputed that no certificate of insurance was obtained listing 405 Webster as an additional insured prior to plaintiff McLean's accident. Accordingly, National Grange contends that the Original policy does not provide coverage to 405 Webster.
Next, National Grange makes the same argument against 405 Webster that it made against Linear, that the additional insured provision of its policy only afforded coverage to additional insureds such as Linear and 405 Webster for vicarious liability arising out of Original's actions. When 405 Webster made its tender in April 2008, plaintiff McLean's claims against 405 Webster sounded solely in negligence and 405 Webster never made a new tender or otherwise notified National Grange of the change in circumstances when plaintiff McLean amended his complaint to add vicarious liability claims against 405 Webster. Thus, National Grange argues that 405 Webster failed to comply with the notice requirements of its policy with Original.
Also, National Grange asserts that 405 Webster's claims against it must be dismissed because 405 Webster failed to provide timely notice of plaintiff McLean's claim or lawsuit, noting that 405 Webster did not provide National Grange with such notice until its April 28, 2008-tender letter, nearly one year after the accident and eleven months after plaintiff McLean commenced his action. National Grange points out that it specifically reserved its right to assert a late notice defense in its May 15, 2008 correspondence with 405 Webster's counsel.
Finally, National Grange argues in the alternative, assuming that 405 Webster is entitled to coverage as an additional insured under the National Grange policy, that the National Grange coverage is excess to 405 Webster's coverage under its own liability policy, based upon the language of the "other insurance" clause in the National Grange policy.
405 Webster, in its affirmation in opposition to National Grange's cross-motion and reply in support of its motion, argues several points. 405 Webster maintains that the blanket endorsement in the National Grange policy clearly demonstrates that 405 Webster is an additional insured under the policy, because the written contract between Linear and Original required Original to obtain insurance covering the owner of the building, making the failure to obtain a certificate of insurance irrelevant. Also, 405 Webster contends that National Grange's argument that 405 Webster should have sent another tender letter to National Grange, seeking defense and indemnification, after plaintiff McLean amended his complaint lacks merit because National Grange was a party to the action at that time. Moreover, 405 Webster argues that National Grange never disclaimed coverage to 405 Webster based upon the purported late notice of claim and suit and it cannot do so for the first time in its summary judgment cross-motion. 405 Webster points out that National Grange was aware of the facts underlying this potential defense when Ms. McLaughlin wrote her May 15, 2008 letters, but failed to disclaim at that time or any time since. Finally, 405 Webster contends that the National Grange policy is not excess to 405 Webster's own liability insurance because 405 Webster's policy contains its own "other insurance clause."
The specific certificate of insurance requirement in the National Grange insurance policy, "Contractor's Extension Endorsement," previously quoted in this decision and cited by National Grange in support of its cross-motion for summary judgment, has been held to be ambiguous. ( Erie Ins. Group v National Grange Mut. Ins. Co. , 63 AD3d 1412 , 1414 [3d Dept 2009]). The Appellate Division, Third Department held, at 1414, that "this provision is ambiguous" and susceptible to different interpretations. One interpretation, supported by National Grange, is that the clause requires both a written construction contract or agreement requiring additional insured coverage and a certificate of insurance listing the additional insured. Another possible interpretation, supported by 405 Webster, is that the language requires either: a written contract requiring additional insured coverage regardless of whether the insurer is notified with a certificate of insurance; or, an oral agreement requiring that the insurer be notified with a certificate of insurance prior to the date of loss, which is not applicable to the facts of the instant case. ( Erie Ins. Group v National Grange Mut. Ins. Co., 63 AD3d at 1414). It is well-settled that ambiguous provisions in an insurance policy must be construed against the insurer who drafted the policy. ( Matter of Mostow v State Farm Ins. Co., 88 NY2d 321, 327). The Court of Appeals, in Westview Assoc. v Guaranty Natl. Ins. Co., 95 NY2d 334, 340, instructed that "[i]f the language of the policy is doubtful or uncertain in its meaning, any ambiguity must be resolved in favor of the insured and against the insurer." ( See Pepsico, Inc. v Winterthur Intl. Am. Ins. Co. 13 AD3d 599 , 600 [2d Dept 2004]; Village Mall at Hillcrest Condominium v Merrimack Mut. Fire Ins. Co., 309 AD2d 857, 858 [2d Dept 2003]; Nationwide Mut. Ins. Co. v CNA Ins. Co., 286 AD3d 585, 587 [2d Dept 2001]). Therefore, in the instant action, since the obligation to provide additional insured coverage to 405 Webster as the building owner is set forth in the Linear and Original written contract and the subject policy language may be read as not to require a certificate of insurance, the Court rejects National Grange's argument that the failure to obtain a certificate of insurance precludes coverage.
Also, National Grange's argument that 405 Webster is not entitled to a defense and indemnity in the underlying action, because it failed to provide National Grange with timely notice of plaintiff McLean's claim or lawsuit, lacks merit. National Grange was aware of 405 Webster's untimeliness when on May 15, 2008 it sent two letters to counsel for 405 Webster. However, National Grange failed to disclaim on this basis at that time or any time since. It is well-settled that an insurer's failure to disclaim as soon as is reasonably possible precludes an effective disclaimer at a later date. (Insurance Law § 3420[d] [2]; Mid City Constr. Co., Inc., 70 AD3d at 790). Moreover, the fact that National Grange reserved its right to disclaim in its May 15, 2008 correspondence does not provide it with grounds to circumvent Insurance Law § 3420 (d) (2) or otherwise indefinitely postpone issuing a disclaimer long after it obtained knowledge of the salient facts.
With respect to the issue of vicarious liability coverage, the Court's previous determination regarding Linear's coverage under the National Grange policy is equally applicable to 405 Webster. The National Grange policy only affords additional insured coverage to 405 Webster to the extent that 405 Webster is held vicariously liable for Original's acts and does not afford 405 Webster coverage for liability attributable to its own negligence. It is premature for the Court to make a determination regarding whether 405 Webster is entitled to be indemnified under Original's National Grange policy, because there are vicarious liability and negligence claims currently pending against 405 Webster. Any ruling regarding National Grange's obligation to indemnify 405 Webster must await the trier of fact's determination on these claims.
With respect to whether National Grange is obligated to defend 405 Webster in the underlying action, there is a reasonable possibility that the National Grange policy will provide coverage to 405 Webster. If 405 Webster is found vicariously liable for Original's actions under Labor Law § 241 (6), the policy will provide coverage for such liability. ( Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d at 37). Therefore, 405 Webster is entitled to an order declaring that National Grange is obligated to share in the costs of defending 405 Webster in the underlying action with 405 Webster's existing liability carrier.
Finally, regarding the issue of primary and excess coverage, 405 Webster's liability carrier is not a party to this action and it should be prior to any ruling on the priority of coverage. ( BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d at 716). Therefore, until a determination is made as to whether or not the National Grange policy affords coverage to 405 Webster, any ruling on the priority of coverage between the National Grange policy and 405 Webster's own policy is premature.
National Grange's cross-motion against Verizon and Mastec
Defendant National Grange cross-moves for an order dismissing the claims of Verizon and Mastec, which seeks defense and indemnification in the underlying McLean action as additional insureds under Original's policy with National Grange. National Grange relies upon the same certificate of insurance argument it advanced against 405 Webster and given the undisputed fact that no certificates of insurance were issued prior to plaintiff McLean's accident listing Mastec or Verizon as additional insureds, National Grange argues that its policy affords no coverage to these parties.
The Court already considered whether the failure to obtain a certificate of insurance precludes additional insured coverage under the National Grange policy in the context of 405 Webster's summary judgment motion and National Grange's cross-motion. As previously discussed, the policy clause relied upon by National Grange is ambiguous. ( Erie Ins. Group v National Grange Mut. Ins. Co., 63 AD3d at 1414). The language in this clause may be interpreted as merely requiring that the named insured's obligation to obtain additional insured coverage be in writing, without regard to whether or not a certificate of insurance was also obtained listing the additional insured. ( Id.) It is undisputed that Original's obligation to obtain additional insured coverage is contained in a written contract. Again, ambiguous provisions in an insurance policy must be construed against the insurer who drafted the policy. ( Matter of Mostow v State Farm Ins. Co., 88 NY2d 321, 327). Therefore, National Grange's cross-motion for summary judgment and dismissal of both Verizon's and Mastec's claims seeking a defense and indemnification is denied.
Linear's breach of contract claim against Original
Defendant Linear moves for summary judgment against defendant Original, claiming that if it is determined that Linear is not covered as an additional insured under Original's policy with National Grange, Original breached its obligation to obtain insurance coverage for Linear.
Original, in opposition to this motion, argues that it complied with its obligation to obtain liability insurance listing Linear as an additional insured, noting that Linear moved for summary judgment against National Grange seeking such coverage. Also, Original points out that Linear never complained to Original about the form of coverage. The contract between Linear and Original required Original to provide Linear with "certificates of insurance evidencing the coverages required by this Agreement in a form acceptable to Contractor [Linear]."
The Court already determined that Linear is covered as an additional insured under Original policy with National Grange if Linear is found vicariously liable for Original's acts. Linear fails to make a prima facie showing that this coverage fails to satisfy Original's contractual obligations with respect to insurance coverage for Linear. Therefore, Linear's motion for summary judgment against Original for a breach of contract by Original, for its failure to obtain additional insured coverage for Linear is denied.
Conclusion
Accordingly, it is
ORDERED, that those branches of the motions of defendants 405 Webster Avenue Associates, Linear Technologies, Inc., Mastec Incorporated, Verizon and third-party defendant Original Communications, Inc. for summary judgment and dismissal of plaintiff Marcus McLean's Labor Law § 240 (1) cause of action are granted; and it is further
ORDERED, that branch of plaintiff Marcus McLean's motion for partial summary judgment on liability for his Labor Law § 240 (1) cause of action is denied; and it is further
ORDERED, that those branches of the motions of defendants 405 Webster Avenue Associates, Linear Technologies, Inc., Mastec Incorporated, Verizon and third-party defendant Original Communications, Inc. for summary judgment and dismissal of plaintiff Marcus McLean's Labor Law § 241 (6) cause of action are denied to the extent that plaintiff Marcus McLean relies upon a violation of 12 NYCRR § 23-1.8 (c) (1) and are otherwise granted; and it is further
ORDERED, that branch of plaintiff Marcus McLean's motion for partial summary on liability for his Labor Law § 241 (6) cause of action is denied; and it is further
ORDERED, that those branches of the motions of defendants 405 Webster Avenue Associates, Linear Technologies, Inc., Mastec Incorporated and Verizon and the cross-motion of third-party defendant Original Communications, Inc. for summary judgment and dismissal of plaintiff Marcus McLean's Labor Law § 200 and common-law negligence claims against defendants 405 Webster Avenue Associates, Linear Technologies, Inc., Mastec Incorporated and Verizon and third-party defendant Original Communications, Inc. are denied; and it is further
ORDERED, that branch of defendant 405 Webster Avenue Associates' motion for contractual indemnification against defendant Linear Technologies, Inc. and third-party defendant Original Communications, Inc. is denied; and it is further
ORDERED, that branch of defendant Linear Technologies, Inc.'s motion for contractual indemnification against third-party defendant Original Communications, Inc. is denied; and it is further
ORDERED, that branch of third-party defendant Original Communications, Inc.'s cross-motion for summary judgment and dismissal of the claims for contractual indemnification by defendants Linear Technologies, Inc. and 405 Webster Avenue Associates against it is denied; and it is further
ORDERED, that branch of third-party defendant Original Communications, Inc.'s cross-motion for summary judgment dismissing all common-law indemnification and contribution claims against it by defendants Linear Technologies, Inc. and 405 Webster Avenue Associates is denied; and it is further
ORDERED, that branch of defendant Mastec Incorporated's motion for summary judgment and dismissal of all common-law indemnification and contribution claims against it is denied; and it is further
ORDERED, that branch of defendant Linear Technologies, Inc.'s motion seeking an order declaring that second third-party defendant National Grange Mutual Insurance Company is obligated to defend and indemnify defendant Linear Technologies, Inc. in the underlying action as an additional insured under second third-party defendant National Grange Mutual Insurance Company's liability policy with defendant Original Communications, Inc. is granted to the extent that second third-party defendant National Grange Mutual Insurance Company is obligated to share in the costs of defending defendant Linear Technologies, Inc. in the underlying action; and it is further
ORDERED, that branch of second third-party defendant National Grange Mutual Insurance Company's cross-motion for summary judgment and dismissal of defendant Linear Technologies, Inc.'s defense and indemnification cross-claims against it is denied; and it is further
ORDERED, that branch of defendant and second third-party plaintiff 405 Webster Avenue Associates' motion seeking an order declaring that second third-party defendant National Grange Mutual Insurance Company is obligated to defend and indemnify defendant and second third-party plaintiff 405 Webster Avenue Associates in the underlying action as an additional insured under second third-party defendant National Grange Mutual Insurance Company's liability policy with defendant Original Communications, Inc. is granted to the extent that second third-party defendant National Grange Mutual Insurance Company is obligated to share in the costs of defending defendant and second third-party plaintiff 405 Webster Avenue Associates in the underlying action; and it is further
ORDERED, that branch of second third-party defendant National Grange Mutual Insurance Company's cross-motion for summary judgment and dismissal of defendant and second third-party plaintiff 405 Webster Avenue Associates' defense and indemnification claims against it is denied; and it is further
ORDERED, that branch of second third-party defendant National Grange Mutual Insurance Company's cross-motion for summary judgment and dismissal of defendants Verizon and Mastec, Inc.'s defense and indemnification claims against it is denied; and it is further
ORDERED, that branch of defendant Linear Technologies, Inc.'s motion seeking summary judgment against defendant Original Communications, Inc. for breach of of contract to procure liability insurance by defendant Original Communications, Inc. for defendant Linear Technologies, Inc. is denied.
This constitutes the Decision and Order of the Court.