Opinion
INDEX NO. 152989/2014 Third-Party Index No. 595941/2017
01-06-2020
TIMOTHY MULLINS, Plaintiff, v. CENTER LINE STUDIOS, INC.,NEW YORK COMMUNICATIONS CENTER ASSOCIATES, L.P., NYC PRODUCTION CORE LLC,NEW WORLD STAGES LLC, Defendant. NYC PRODUCTION CORE LLC Plaintiff, v. MURDER FOR TWO LIMITED LIABILITY COMPANY Defendant.
NYSCEF DOC. NO. 188 PRESENT: HON. KELLY O'NEILL LEVY Justice MOTION DATE 10/02/2019 MOTION SEQ. NO. 005, 006, 007, 008
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 005) 91, 92, 93, 94, 95, 96, 97, 98, 99, 148, 152, 163, 164, 167, 175, 176 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 006) 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 149, 153, 155, 156, 157, 158, 168, 183 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 007) 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 145, 146, 147, 150, 159, 160, 161, 162, 169, 177, 178, 182, 184, 185, 186 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 008) 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 151, 154, 165, 170, 171, 172, 173, 174, 179, 180, 181 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER).
Motion Sequence 005 (Motion for Summary Judgment), 006, 007, and 008 are consolidated for disposition.
Plaintiff Timothy Mullins was injured while working on a project to assemble a large set piece for the production being put on by Murder for Two, LLC, who had leased the space from New World Stages, LLC. The building itself was owned by New York Communications Center Associates, LP. NYC Production Core, LLC signed a contract with Murder for Two, LLC relating to the assembly of the set piece, along with other responsibilities. The set piece itself was constructed by Center Line Studios, Inc. before being transported to the assembly location. Plaintiff alleges that he climbed a ladder which was part of the set piece and a rung came undone, causing plaintiff to fall and sustain injuries.
Motion Sequence 005
Motion Sequence 005 is a motion for summary judgment brought by defendant NYC Production Core LLC ("Core") seeking dismissal as against Core of plaintiff's complaint and all cross-claims pursuant to CPLR 3212. Only defendant Center Line Studios, Inc. ("Center Line") opposes.
"The drastic remedy of summary judgment may only be granted where, viewing the facts in the light most favorable to the non-movant, 'the moving party has "tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact,'" and the non-moving party has subsequently 'fail[ed] "to establish the existence of material issues of fact which require a trial of the action"' ...Summary judgment disposition is inappropriate where varying inferences may be drawn, because in those cases it is for the factfinder to weigh the evidence and resolve any issues necessary to a final conclusion." Dormitory Authority v. Samson Constr. Co., 30 N.Y.3d 704, 717 (2018) (citing Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012)).
Core argues that they were a "special employer" of plaintiff. When a plaintiff elects to receive workers' compensation benefits from his or her general employer, the plaintiff is precluded from maintaining a personal injury action against his or her special employer. See, e.g., Cunningham v. State of New York, 60 N.Y.2d 248, 251 (1985); Workers' Compensation Law § 11 and § 29(6). "Many factors are weighed in deciding whether a special employment relationship exists, and generally no one is decisive...While not determinative, a significant and weighty feature...focuses on who controls and directs the manner, details and ultimate result of the employee's work." Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558 (1991).
Plaintiff's testimony in this case presents ample support for the conclusion that Core controlled and directed the manner, details and ultimate result of the employee's work:
Q: ...Who was your employer?Plaintiff Deposition Transcript, 31:16 - 49:16. Center Line opposes, arguing that Ron Neilson was actually an employee of defendant Murder for Two LLC and not Production Core. This contradicts both the plaintiff's testimony and Mr. Neilson's own testimony:
A: The guy who led the crew is Ron Nielsen who worked for Production Core, typically.
...
Q: ...[W]hen you received payment for your wages when you were working, would you get a check or cash?
A: Check.
Q: And would it be from Production Core?
A: Yes.
...
Q: ...What time did you get to Stage 5 Theatre on the day of the accident?
A: Nine.
Q: Do you have to report to somebody?
A: Yes.
Q: Who do you report to?
A: Ron Nielson.
...
Q: ...So when you get downstairs, is your group there from Production Core? Is anyone there from Production Core besides yourself as a worker?
A: From Production Core?
Q. Yes.
A. Yes, we're not going to get to work until they are there, unless there's — for this particular case, Production Core was in the room, yes. No work started without them.
...
Q: Do you recall if Ron told you to do anything particular that day?
A: Help finish securing the wall to the theatre, the wall that we had to assemble, we had to finish securing that to the back wall and had to finish putting on the faux brick.
...
Q: How about we do it this way: Were you an employee of Production Core on the day of the accident?
A: Yes.
Q: When you were working at that time, were you working for a particular company or were you working for yourself or something else?Neilson Deposition Transcript, 11:2 - 12:5. However, Center Line cites to the transcript of James Cleveland, the production supervisor for Production Core:
A: I was employed by Production Core.
...
Q: Who hired you for that job? Who from Production Core?
A: It was either Dave Upton or James, and I can't remember James' last name right now. Cleveland.
Q: Who did Ron Nilson work for?James Cleveland Deposition Transcript, 13:24 - 71:5. The plaintiff and Mr. Neilson both allege that Mr. Neilson worked for Core, whereas Mr. Cleveland insists that Mr. Neilson worked for Murder for Two. "[A] person's categorization as a special employee is usually a question of fact...though...the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issues of fact." Thompson, 78 N.Y.2d at 557-558 (1991). The depositions leave a fundamental factual dispute as to whether Mr. Neilson was an employee of Core or simply reported to Core while working for Murder for Two. This fundamental factual dispute precludes a determination of special employment status at this time. The motion for summary judgment is denied.
A: He worked for Murder for Two. He is an employee of Murder for Two. He reported to Dave Upton at Production Core.
...
Q: For the show Murder for Two, what was Production Core's role?
A: Production supervision and production management. So the company was billed as the production supervisor. We placed Dave Upton as the production manager in the room.
...
Q: Does Ron Nilson's crew for Murder for Two do everything from unpacking the set to completely installing it?
A: Correct.
Q: And everything in between?
A: Yes.
...
Q: Was there someone that had the responsibility of safety for the actual laborers for the work that they are doing?
A: That would be the production carpenter. The person who oversees the crew working specifically, then everyone looks out for everyone's safety.
Q: Mr. Nilson?
A: Yes.
...
Q: ...[W]ould Mr. Upton or Ms. Pason ever tell Mr. Nilson or any of the carpenters how to go about doing the means and methods of their work?
A: No, the department head oversees the crew and what their plan is for the day. We would ask them what is their plan for day. What do you need. Start here. Get this done.
Q: Would Mr. Upton or Ms. Pason inspect the work of the carpenters?
A: The production carpenter would then - we would walk around to see, but the production carpenter is responsible for checking the work of everybody. We then check in with the department head.
...
Q: Who is Mr. Nilson's supervisor on site? Was that Mr. Upton?
A: Yes.
...
Q: I guess my question is, who paid Ron Nilson?
A: Murder for Two.
Q: Who paid his crew?
A: Murder for Two.
Motion Sequences 006, 007 and 008
Motion Sequence 006 is plaintiff's motion pursuant to CPLR 3212 seeking partial summary judgment. Defendants New York Communications Center Associates ("NYCCA") and New World Stages, LLC ("New World") oppose as relates to Labor Law 240(1) and Labor Law 241(6) and defendant Center Line opposes as relates to Labor Law 200 and common law negligence claims. Motion Sequence 007 is NYCCA and New World's motion pursuant to CPLR 3212 seeking summary judgment on Labor Law 240(1) and Labor Law 241(6). NYCCA and New World also seek summary judgment on Labor Law 200 and common law negligence claims as relating to them and to Murder for Two, LLC. NYCCA and New World also seek summary judgment dismissing the second third-party action and granting all cross-claims against NYC Production Core, LLC and Center Line Studios, Inc ("Center Line"). Motion Sequence 008 is Center Line's motion for summary judgment seeking dismissal of the labor law and common law claims against them.
Labor Law 240(1) Analysis
Plaintiff first seeks summary judgment pursuant to Labor Law 240(1) against defendants NYCCA and New World. NYCCA and New World seek summary judgment on the same issue. Labor Law 240(1) states:
All contractors and owners and their agents ... in the erection [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.Unlike in the special employment context, the factual dispute as to who supervised and controlled plaintiff does not preclude summary judgment in the Section 240(1) context. See, e.g., Cevallos v. Morning Dun Realty Corp., 78 A.D.3d 547 (1st Dep't 2010) ("Defendant's contention that, as an absentee owner, he did not supervise or control plaintiff's work is irrelevant, since absolute liability follows upon proof that a defendant's breach of its statutory duty proximately caused the accident."). Nor do questions regarding contributory negligence preclude summary judgment. Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 286 (2003) ("contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury."). However, "an accident alone does not establish a Labor Law § 240(1) violation or causation." Id. at 287.
As a threshold matter, both NYCCA and New World qualify as "contractors and owners and their agents" pursuant to Labor Law 240(1) - NYCCA has conceded that it is an owner in pleadings and New World is a long-term tenant who contracted to have work performed for their benefit. See, e.g., Ho Kim v. D&W Shin Realty Corp.,47 A.D.3d 616 (2d Dep't 2008) (owners include "a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit.").
The parties disagree as to whether plaintiff was "erecting [or] altering...a structure" when the fall occurred. The courts have defined a "structure" as "any production or piece of work artificially built up or composed of parts joined together in some definite manner." Caddy v. Interborough R.T. Co., 195 N.Y. 415 (1909). Courts have applied this broad definition to many assemblages and determined that they are structures for purposes of Labor Law 240(1). See, e.g., McCoy v. Abigail Kirsch at Tappan Hill, Inc., 99 A.D.3d 13 (2nd Dep't 2012) (a wedding chupah); Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942 (1991) (a telephone pole). In light of the broad interpretation of what qualifies as a structure, the large set-piece involved in this action meets the standard for a structure. The fact that this is a structure (the set piece) within a larger structure (the building) does not affect the analysis. See, e.g., Panico v. Advanstar Communications, Inc., 92 A.D.3d 656 (2d Dep't 2012) (a ticket booth inside the Jacob K. Javits Convention Center was a structure); Sinzieri v. Expositions, Inc., 270 A.D.2d 332 (2d Dep't 2000) (a window exhibit in the Nassau Veterans Memorial Coliseum was a structure); Kharie v. South Shore Record Mgt., Inc., 118 A.D.3d 955 (2d Dep't 2014) (free-standing shelves); Philips v. Powercrat Corp., 126 A.D.3d 590 (1st Dep't 2015) (wall-bolted shelves).
It is also clear that the general purpose of the work that plaintiff was performing was erecting the structure - the set was delivered in pieces which were then put together to create one large set piece. Defendants argue that the relevant question is what act was being performed at the time of the incident - namely stapling of faux brick - and not the general purpose of the project, however Labor Law 240(1) provides broader protection. See, e.g., Hoyos v. NY-1095 Ave. of the Americas, LLC, 156 A.D.3d 491 (1st Dep't 2017) (worker injured while waiting to sign in: "Although the owner seeks to remove plaintiff from the protections of Labor Law § 240(1), on the basis that plaintiff was not 'working' at the time of the accident and he was in street clothes, those facts do not dictate whether an injury is within or without the protections of the Scaffold Law...Since plaintiff's painting assignment related to a construction/renovation project within the building plaintiff was unquestionably engaged in an enumerated activity within the meaning of Labor Law § 240(1)."); see also Alarcon v. UCAN White Plains Hous. Dev. Fund Corp., 100 A.D.3d 431 (1st Dep't 2012) (worker injured while leaving upon being dismissed by supervisor); Morales v. Spring Scaffolding, 24 A.D.3d 42 (1st Dep't 2012) (worker injured while eating lunch on structure).
Accordingly, defendants NYCCA and New World are subject to Labor Law 240(1), the set piece is a structure according to Labor Law 240(1), and plaintiff was erecting that structure. The court therefore does not reach the questions of whether the stapling of faux brick might be considered merely cosmetic work, or whether constructing a set piece within a building is altering that building, or any of the other able arguments presented. Once it is determined that Labor Law 240(1) applies, the question remaining is whether it was violated.
Typically, a ladder breaking as has been established in this case is enough to make a prima facie showing of proximate cause under Labor Law 240(1). See, e.g., Belding v. Verizon NY, Inc., 65 A.D.3d 414 (1st Dep't 2009) ("Plaintiff made a prima facie showing of proximate cause under section 240(1) with his unrefuted testimony that the ladder collapsed beneath him causing him to fall."); see also Scekic v. SL Green Realty Corp., 132 A.D.3d 563 (1st Dep't 2015) ("Proof that a ladder was defective or that it slipped, tipped, was placed improperly or otherwise failed to provide support gives rise to 240(1) liability"). However, this is not an ordinary ladder case. There are numerous questions of fact surrounding the ladder's purpose and plaintiff's use thereof—such as whether the ladder at issue was a piece of scenery not meant to be used by plaintiff, whether plaintiff was directed to use said ladder, and whether plaintiff was reasonable in using the ladder. See generally Kerrigan v. TDX Constr. Corp., 108 A.D.3d 468 (1st Dep't 2013). For example, the creator of the ladder was expressly told to build "scenery" and was allegedly told that no one would go on it and it was just a "prop". Furthermore, there were two ladders that were intended for use by the workers that plaintiff did not use because they were in use at that particular moment. Considering the conflicting accounts as to the ladder's intended use and the circumstances surrounding its actual use, summary judgment as to Labor Law 240(1) is denied.
Labor Law 241(6) Analysis
Plaintiff also seeks summary judgment against NYCCA and New World pursuant to Labor Law 241(6). NYCCA and New World seek summary judgment on the same issue. Labor Law 241(6) provides that:
All contractors and owners and their agents...when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.As discussed above, NYCCA and New World are "owners." However, Labor Law 241(6) refers only to "constructing or demolishing buildings or doing any excavating in connection therewith" - and makes no mention of the "structures" that were critical to the analysis of Labor Law 240(1). The assembly of the set piece involved in this case does not constitute the construction of a building and, as such, Labor Law 241(6) does not apply to the facts of this case. See, e.g., Kretzschmar v. N.Y.S. Urban Development Corp., 13 A.D.3d 270 (1st Dep't 2004); see also Nagel v. D&R Realty Corp., 99 N.Y.2d 98 (2002). The court does not reach the arguments relating to whether Labor Law 241(6) was violated had it been applicable. As such, the motion is denied as relating to Labor Law 241(6). Defendants Center Line, NYCCA and New World's motions for summary judgment on Labor Law 241(6) are granted.
Labor Law 200 and Common Law Negligence Analysis
Plaintiff seeks summary judgment against defendant Center Line pursuant to Labor Law 200 and common law negligence—and Center Line also seeks summary judgment. Plaintiff argues that Center Line is liable because the ladder was defective, but there are considerable questions of fact—both in the phrasing of the contract to create the ladder and in testimony at depositions—as to the purpose of this ladder. Center Line claims that the ladder was intended only as a prop and was not defective for that purpose. Plaintiff points to evidence indicating that its use as a functioning ladder was known during its production. These factual disputes preclude summary judgment. Accordingly, summary judgment is denied as to the Labor Law 200 and common law negligence claims against Center Line.
NYCCA, New World, and Murder for Two move for summary judgment dismissing the Labor Law 200 and common law negligence claims against them. However, "[for] a claim [that] arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation." Ross v. Curtis-Palmer Hydro Electric Corp., 81 N.Y.2d 494, 505 (1993); see also Naughton v. City of New York, 94 A.D.3d 1 (1st Dep't 2012). As discussed above, Murder for Two's relationship with Ron Nielson is an essential question of fact still in dispute and so a determination cannot be made as to Murder for Two's level of supervisory control. It appears uncontroverted, however, that NYCCA (an out of possession owner) and New World (lessor without direct control over the lessee's work) did not have any level of supervisory control over plaintiff's work and so the Labor Law 200 and common law negligence claims against them can be dismissed.
NYCCA, New World and Murder for Two also move for summary judgment on their common law cross-claims against Defendant/second third-party defendant, Production Core. However, summary judgment can not be granted as issues of fact exist as to plaintiff's special employment status. Therefore this aspect of the motion is denied.
Contractual Indemnity
Defendant/second third-party defendant, Production Core, entered into a contract with second third-party plaintiff, Murder for Two. Pursuant to paragraph "20" of said agreement, entitled "Representations, Warranties and Indemnities", the parties agreed to indemnify each other in subsections (c) and (d):
c. Producer agrees to indemnify and hold Production Supervisor harmless from and against any and all losses, claims, damages, charges, liabilities, expenses, including reasonable attorneys' fees, and risks arising out of or based upon any action taken by Production Supervisor in accordance with this Agreement, for reason of Production Supervisor's engagement hereunder.Murder for Two argues that these sections require that Production Core provide Murder for Two indemnity, but not vice versa. The reasoning underlying this argument is that Core allegedly took actions that were not in accordance with the Agreement. However, that is a question of fact to be determined by a jury and cannot be determined at this time based solely on the uncontroverted evidence presented. Accordingly, the motion for contractual indemnity is denied.
d. Production Supervisor agrees to indemnify and hold Producer harmless from and against any and all losses, claims, damages, charges, liabilities, expenses, including reasonable attorneys' fees, and risks arising out of or based upon any action taken or omission made by Production Supervisor which is not in accordance with this Agreement.
Accordingly, it is hereby
ORDERED, that the motion for summary judgment brought by defendant NYC Production Core LLC is denied; and it is further
ORDERED, that the motions for summary judgment pertaining to Labor Law 240(1) are denied; and it is further
ORDERED, that Defendants Center Line, NYCCA and New World's motions for summary judgment on Labor Law 241(6) are granted and plaintiff's 241(6) claims are hereby dismissed; and it is further
ORDERED, that plaintiff's Labor Law 200 and common law negligence claims are dismissed only as against NYCCA and New World.
This constitutes the decision and order of the court. January 6 , 2020
DATE
/s/ _________
KELLY O'NEILL LEVY, J.S.C.