Opinion
Index No. 154427/2017 Motion Seq. Nos. 004 005 006 007
11-02-2022
JOSE GUILLERMO MUNOZ, Plaintiff, v. JDS SEAGIRT LLC, SEAGIRT AVENUE DEVELOPMENT LLC, JDS DEVELOPMENT LLC, JDS CONSTRUCTION CORP., JDS CONSTRUCTION GROUP, LLC, and SAMPOGNA GROUP INC., Defendants.
Barry McTiernan & Moore LLC, White Plains, NY (Thomas Muldoon of counsel), for defendant Sampogna Group Inc. Kennedys CMK LLP, New York, NY (Nitin Sain of counsel), for defendants/third-party plaintiffs JDS Seagirt LLC, JDS Construction Group LLC, and JDS Development LLC. Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY (Christopher J. Donadio of counsel), for plaintiff Jose Guillermo Munoz. Rawle & Henderson LLP, New York, NY (Richard B. Polner of counsel), for third-party defendants/second third-party plaintiffs RCI PLBG, Inc. and RCI Plumbing Corp.
Unpublished Opinion
Barry McTiernan & Moore LLC, White Plains, NY (Thomas Muldoon of counsel), for defendant Sampogna Group Inc.
Kennedys CMK LLP, New York, NY (Nitin Sain of counsel), for defendants/third-party plaintiffs JDS Seagirt LLC, JDS Construction Group LLC, and JDS Development LLC.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY (Christopher J. Donadio of counsel), for plaintiff Jose Guillermo Munoz.
Rawle & Henderson LLP, New York, NY (Richard B. Polner of counsel), for third-party defendants/second third-party plaintiffs RCI PLBG, Inc. and RCI Plumbing Corp.
PRESENT: HON. GERALD LEBOVITS, JUSTICE
DECISION + ORDER ON MOTION
GERALD LEBOVITS, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 196, 201, 207, 208, 209, 210, 221, 222, 223, 224, 225, 234, 235 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 197, 202, 211, 226, 227, 238 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 198, 203, 212, 228, 229, 236, 237 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 199, 200, 204, 205, 206, 213, 214, 215, 216, 217, 218, 219, 220, 230, 231, 232, 233, 239, 240, 241 were read on this motion for SUMMARY JUDGMENT.
This is an action to recover damages for personal injuries allegedly sustained by a plumber-mechanic on October 11, 2016, when, while working at a construction site located at 150 Beach 5th Street, Far Rockaway, New York (the Premises), he stepped onto an unsecured metal plate and fell into a hole.
By decision and order dated June 22, 2018, default judgment as to liability was granted without opposition against defendant Seagirt Avenue Development LLC. (NYSCEF Doc. No. 155).
In motion sequence number 004, defendant Sampogna Group, Inc. (Sampogna) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all crossclaims against it.
In motion sequence number 005, third-party defendants/second third-party plaintiffs RCI PLBG, Inc. and RCI Plumbing Corp. (together, the RCI defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint and all crossclaims against them.
In motion sequence number 006, plaintiff Jose Guillermo Munoz moves, pursuant to CPLR 3212, for summary judgment in his favor on his Labor Law § 240 (1) claim as against defendants/third-party plaintiffs JDS Seagirt LLC (Seagirt), JDS Development, LLC (Development) and JDS Construction Group, LLC (Construction) (together, the JDS defendants).
In motion sequence number 007, the JDS defendants move, pursuant to CPLR 3212, for summary judgment dismissing the complaint, as well as for summary judgment in their favor on their crossclaims for contractual and common-law indemnification against Sampogna and their third-party claims for contractual and common-law indemnification against the RCI defendants.
Motion sequence numbers 004, 005, 006 and 007 are consolidated for disposition.
BACKGROUND
On the day of the accident, the Premises was owned by Seagirt. Seagirt's related company, Construction, was the construction manager for a project at the Premises that entailed the construction of 30 new two-story townhouses, built in multi-unit connected clusters (the Project). Construction hired the subcontractors, including Sampogna, to construct and install concrete and the RCI defendants to install plumbing. The RCI defendants, in turn, subcontracted their work to second-third-party defendant Pro Star Plumbing Heating &Mechanical, Inc. (Pro Star). Plaintiff was an employee of Pro Star.
By stipulation dated July 21, 2020, the second third-party action against Pro Star was discontinued. (NYSCEF Doc. No. 159).
Plaintiff's Deposition Testimony
Plaintiff testified that on the day of the accident, he was employed by Pro Star as a mechanic. His duties included coordinating Pro Star's work, and assigning work to and overseeing Pro Star's other workers. Aside from these duties, plaintiff also physically performed plumbing installation work. Pro Star was responsible for the plumbing work at the Project.
Plaintiff's supervisor at the Project was Diego Munoz, his son. He only received his directions from his supervisor. Pro Star provided plaintiff with all his equipment and safety gear. Plaintiff was familiar with RCI. He knew that they hired Pro Star, but he never interacted with anyone from that company. He also indicated that there were no RCI employees at the accident site on the day of the accident (plaintiff's tr at 45). He only saw Pro Star workers that day (id. at 51).
On the day of the accident, plaintiff arrived at 7 o'clock in the morning and had a meeting with his supervisor and co-workers. Pro Star's work for the day entailed locating "what was missing and . . . fill[ing] in what was not covered or hadn't been done yet" (id. at 48). To do so, plaintiff needed to perform a walkthrough of the Project in order to determine "what people and what tools and what materials were going to be needed to complete the tasks at hand" (id. at 48).
Shortly after the meeting, plaintiff picked up a pad of paper and a pencil and began to walk through the Project. Plaintiff explained that to gather the required information, he needed to access each townhouse. He would then take notes to identify what materials and tools were needed for the day. To do this work, plaintiff entered one of the four-unit clusters of underconstruction townhouses and began surveying the area. Each individual townhouse could be accessed via its front stairs. Additionally, there was "access from one house to the other house" between the studs of the wall framework because, at that time, no sheetrock was installed to divide the townhouses (id. at 54). Plaintiff elected to move from one townhouse to another via this method "to save time" (id. at 54). It was while walking between two townhouses that plaintiff "stepped on a metallic laminate, a plate," which moved, causing him to fall (id. at 54) approximately 10 feet (id. at 72).
Plaintiff explained that certain portions of the floors had been left clear to allow for people to quickly move from townhouse to townhouse. This was done "purposefully" (id. at 58). No one ever explicitly told him that he was (or was not) allowed to walk between the units this way, but "[e]verybody knew" (id. at 57). Plaintiff also testified that two of his coworkers witnessed the accident and helped him immediately after the accident (id. at 73).
Deposition Testimony of Adam Hirsh (Construction's Site Superintendent)
Adam Hirsh testified that at the time of the accident, he was the site superintendent for the Project at the Premises. He was employed by Development, a real estate development firm, though his W-2 stated that he was paid by Construction (Hirsh tr at 84). His responsibilities included site supervision and oversite. As part of his work, he walked the site and held daily and weekly meetings (id. at 15). He also prepared daily reports (id. at 16). Hirsh also testified that Seagirt was the ownership entity created to purchase the Premises. Overall, the JDS entities worked in concert as the owner and general contractor for the Project (id. at 17), though Construction was "the entity that was the actual contractor of record" (id. at 19). Hirsh was unaware of any written contracts between the JDS defendants (id. at 86-87).
Hirsh explained that Sampogna was "one of the masonry contractors" hired by Construction for the Project (id. at 20). Sampogna was responsible for slab work, foundation work and concrete stair installation. Hirsh also explained that RCI was the plumber hired by Construction for the Project, though Pro Star was the company "that actually performed the work at the job site" (id. at 21). Construction generally oversaw and operated the site. In addition, it directly employed "a couple of laborers" at the Project (id. at 27). The laborers directly hired by Construction were responsible primarily for "picking up debris," though they also handled "fall protection" at the Project (id. at 59), including "temporary railings, temporary plywood coverings" (id. at 60) and working to "safe off openings" (id. at 72).
Hirsh did not witness the accident. He learned about it shortly after it occurred when the ambulance arrived. He only knew what happened from people who described the accident to him. He then prepared an accident report. At his deposition, Hirsh was shown a copy of the accident report. He confirmed it was the report he prepared, though he did not specifically recall writing it, or speaking with anyone to gather the information within. He confirmed that the report indicated that plaintiff's accident occurred in an area of the Project named "cluster four" or "cluster D" - one group of the under-construction townhouses (id. at 33). Hirsh also confirmed that JDS incident reports are computer generated and do not carry signatures (id. at 43 ["it would have been uploaded without my . . . signature"]). He did not recall how he learned of any specifics of the accident that he included in his report.
Hirsh testified that areas like the accident location typically were covered with plywood. Construction's laborers "might have" spray painted the word "hole" onto plywood covers over holes as a "typical fall protection procedure" (id. at 47). The plywood cover could be removed for several reasons, including "finish[ing] up some framing" or to "lay down metal Q decking so that concrete can be poured" (id. at 50). Hirsh testified that "[g]enerally speaking," Sampogna was responsible for installing q-decking. Hirsh also testified that he did not recall workers walking through unfinished walls to enter different units. He believed that it was not recommended to do so.
Deposition of Nicholas Sampogna (Sampogna's Owner)
Nicholas Sampogna testified that at the time of the accident, he was Sampogna's owner. He was responsible for obtaining jobs and running his company's general business. He did not perform any hands-on work. Sampogna was a concrete company, focusing on foundation work, curbs and sidewalks. They performed "foundations and flatwork" at the Project (Sampogna tr at 24). He could not recall where the Project was or when it took place.
Mr. Sampogna testified that he could not recall if Sampogna had a foreman at the Project, or how many workers it provided. He had no recollection of the specific work his company did at the Project, nor did he know of any other contractors at the Project. He was unaware of plaintiff's accident, until being served with papers in the instant action.
Mr. Sampogna testified that as a part of its work, Sampogna would pour concrete onto q-decking. Sampogna was not responsible for installing q-decking, though. Typically, that would be the responsibility of a "steel contractor, a framing contractor, anybody that dealt with metals" (id. at 43). He also did not recall if Sampogna poured any concrete onto q-decking at the Project. Finally, Mr. Sampogna testified that as a part of their work, Sampogna employees would not use q-decking to cover a hole (id. at 102-103).
Deposition Testimony of Robert DiMiceli (RCI's President)
DiMiceli testified that on the day of the accident he was the president of RCI. RCI is a plumbing contractor. DiMiceli's duties involved estimating jobs, scheduling inspections, and signing off on paperwork. He did not perform any plumbing work himself and only visited projects approximately once a month. DiMiceli testified that RCI was hired by Construction to perform plumbing installation work at the Project. RCI itself did not do any work at the Premises. They "subbed out" all physical work to Pro Star (DiMiceli tr at 12). DiMiceli was also a principal of Pro Star (id. at 15).
DiMiceli was not present at the Premises at the time of the accident. He did not learn about it until a month afterward. He was told that the accident involved plaintiff falling from the first floor down to the ground floor because the "floor gave way" (id. at 20). RCI did not conduct any investigation into what happened. Pro Star's project manager, Eugene DiGenero, spoke with plaintiff's son, Diego - who was Pro Star's foreman - about the accident. Diego did not witness the accident either. DiMiceli was unaware of any witnesses to the accident.
RCI and Pro Star did not install or remove q-decking at the Project (id. at 23).
The JDS Incident Report
An incident report on JDS letterhead (the Incident Report) was prepared by Hirsh on October 11, 2016. It is unsigned. It states that plaintiff was injured "while walking from unit 4C5 to 4D [when] he stepped onto q-deck at the exterior stair platform that was being prepared for a concrete pour and fell approximately 8 feet to the ground" (the JDS defendants' notice of motion, exhibit R; NYSCEF Doc. No. 188). It notes that there were no witnesses and that an ambulance was called to transport plaintiff to the hospital.
The Daily Logs
The JDS defendants prepared daily logs for the Project. The log for the day of the accident noted that "JDS" workers were cleaning the exterior "outside C4" and "[p]repped platforms in C4" (the JDS defendants' notice of motion, exhibit S; NYSCEF Doc No. 189). It also noted that RCI was installing "[c]opper in 4C1 &2" and Sampogna was "[s]etting forms for entries in C4" (id.).
DISCUSSION
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must "'assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial . . . and it is insufficient to merely set forth averments of factual or legal conclusions'" (Genger v Genger, 123 A.D.3d 445, 447 [1st Dept 2014], quoting Schiraldi v U.S. Min. Prods., 194 A.D.2d 482, 483 [1st Dept 1993]).
Preliminary Procedural Issue (Motion Sequence Number 005)
The JDS defendants argue that the RCI defendants' motion for summary judgment should be denied in full because it is procedurally defective. Specifically, the JDS defendants argue, the RCI defendants' motion fails to include a material statement of facts as required by the Uniform Civil Rules for the Supreme Court, 22 NYCRR 202.8-g.
Section 202.8-g (a) provides the following, as relevant:
"Upon any motion for summary judgment . . . the court may direct that there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried."(22 NYCRR 202.8-g [a]).
Here, the court's part rules do not direct the parties to file a material statement of facts. Accordingly, section 202.8-g is not applicable to this action. In any event, there is nothing in section 202.8-g that mandates the denial of a summary judgment motion that fails to comport with subsection (a). Rather, subsection (e) sets forth two options that a court "may" consider, as follows:
"In the event that the proponent of a motion for summary judgment fails to provide a statement of undisputed facts though required to do so, the court may order compliance and adjourn the motion, may deny the motion without prejudice to renewal upon
compliance, or may take such other action as may be just and appropriate."(22 NYCRR 202.8-g [e]).
Further, while it is not in a separate document, the RCI defendants do provide a recitation of facts pertinent to their motion. The JDS defendants acknowledge this recitation of facts and adopt such facts in their responsive papers (NYSCEF Doc. No. 227). Accordingly, even had the court directed the parties to file a material statement of facts, the court would still consider the RCI defendants' motion (see Bonaguro v Old Firehouse No. 4 LLC, 2022 NY Slip Op 30109[U], *5-6 [Sup Ct, Kings County 2022]).
Accordingly, the court will consider the RCI defendants' motion.
The Labor Law § 240 (1) Claim (Motion Sequence Numbers 004, 006 and 007)
Plaintiff moves for summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against the JDS defendants. The JDS defendants and Sampogna each move for summary judgment dismissing the same as to them.
Labor Law § 240 (1), also known as the Scaffold Law, provides, as relevant:
"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law § 240 (1) "imposes a nondelegable duty on owners and contractors to provide devices which shall be so constructed, placed and operated as to give proper protection to those individuals performing the work" (Quiroz v Memorial Hosp. for Cancer &Allied Diseases, 202 A.D.3d 601, 604 [1st Dept 2022] [internal quotation marks and citations omitted]). It "was designed to prevent those types of accidents in which the scaffold . . . 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'" (John v Baharestani, 281 A.D.2d 114, 118 [1st Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]).
The absolute liability found within section 240 "is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (O'Brien v. Port Auth. of NY &NJ, 29 N.Y.3d 27, 33 [2017] [internal quotation marks and citation omitted]). Importantly, Labor Law § 240 (1) "is designed to protect workers from gravity-related hazards . . . and must be liberally construed to accomplish the purpose for which it was framed" (Valensisi v Greens at Half Hollow, LLC, 33 A.D.3d 693, 695 [2d Dept 2006] [internal citations omitted]).
That said, not every worker who falls at a construction site is afforded the protections of Labor Law § 240 (1), and "a distinction must be made between those accidents caused by the failure to provide a safety device . . . and those caused by general hazards specific to a workplace" (Makarius v Port Auth. of N.Y. &N. J., 76 A.D.3d 805, 807 [1st Dept 2010]). Instead, "liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267 [2001]).
Therefore, to prevail on a section 240 (1) claim, a plaintiff must establish that the statute was violated, and that this violation was a proximate cause of the plaintiff's injuries (Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426, 433 [2015]).
Initially, the JDS defendants do not challenge that they are proper Labor Law defendants such that Labor Law §§ 240 (1) and 241 (6) would not apply to them. However, Sampogna argues that the Labor Law cannot apply to it as it was neither an owner, general contractor or an agent of either, such that it may be held strictly liable for plaintiff's injuries (Nascimento v Bridgehampton Constr. Corp, 86 A.D.3d 189, 193 [1st Dept 2011] [an entity becomes a statutory agent under the Labor Law when it has been "delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury"] [internal quotation marks and citation omitted]). In opposition to Sampogna's motion, plaintiff does not oppose dismissal of the Labor Law § 240 (1) claim against Sampogna (NYSCEF Doc. No. 207, ¶ 5).
Here, the record reflects that Sampogna was not delegated the duty to install or maintain hole covers at the Project, nor did it install q-decking. Accordingly, Sampogna did not become a statutory agent for the purposes of the Labor Law with respect to plaintiff's accident. Thus, Sampogna is entitled to summary judgment dismissing the Labor Law § 240 (1) claim as against it.
Turning now to the accident itself, plaintiff established prima facie entitlement to summary judgment in his favor on the Labor Law § 240 (1) claim against the JDS defendants because the safety device - i.e. the unsecured piece of metal covering the hole - failed to protect him from falling while he was performing his work. Specifically, plaintiff's clear and uncontradicted testimony that he fell approximately "ten feet" into a hole that was covered by an unsecured piece of metal (plaintiff's tr at 72) established that the metal cover did not provide plaintiff with proper protection (Nelson v Ciba-Geigy, 268 A.D.2d 570, 572 [2d Dept 2000] ["Whether the device provided proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff"]; McCann v Central Synagogue, 280 A.D.2d 298, 299 [1st Dept 2001]).
In opposition, the JDS defendants argue that plaintiff's fall through the insufficiently protected hole at the Project does not fall within the scope of Labor Law § 240 (1). This argument is unavailing. The First Department has "repeatedly held that § 240 (1) is violated when workers fall through unprotected floor openings" (Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 450 [1st Dept 2013] ["Plaintiff established a prima facie violation of the statute by showing that the plywood cover on the hole was an inadequate safety device because it was not secured at the time of the accident"]; accord Rubio v New York Proton Mgt., LLC, 192 A.D.3d 438, 439 [1st Dept 2021]).
Next, the JDS defendants argue that summary judgment is unwarranted because the accident was unwitnessed. However, the JDS defendants do not point to any inconsistencies in the record that would contradict plaintiff's version of the accident or raise an issue of credibility as to plaintiff's clear and consistent testimony (Gutierrez v Turner Towers Tenants Corp., 202 A.D.3d 437, 438 [1st Dept 2022] ["That the accident was unwitnessed does not bar summary judgment in plaintiff's favor, as there is nothing in the record that contradicts plaintiff's version of the accident or raises an issue as to his credibility"] Dyszkiewicz v City of New York, 194 A.D.3d 444, 445 [1st Dept 2021] ["That the accident was unwitnessed is also of no consequence"]).
Finally, the JDS defendants argue that plaintiff was the sole proximate cause of his accident because he chose to walk between the open walls of the units, rather than exit and enter the units via the stairs. This argument is unpersuasive, as a plaintiff cannot be the sole proximate cause of his accident where a defendant "failed to provide an adequate safety device in the first instance" (Hoffman v SJP TS, LLC, 111 A.D.3d 467, 467 [1st Dept 2013]). Accordingly, any alleged negligence on plaintiff's part goes to comparative fault, which is not a defense to a Labor Law § 240 (1) cause of action, because the statute imposes absolute liability once a violation is shown (Bland v Manocherian, 66 N.Y.2d 452, 460 [1985]; Melito v ABS Partners Real Estate, LLC, 129 A.D.3d 424, 425 [1st Dept 2015]). "[W]here the owner or contractor has failed to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, [n]egligence, if any, of the injured worker is of no consequence" (Hernandez v Bethel United Methodist Church of N.Y., 49 A.D.3d 251, 253 [1st Dept 2008] [internal quotation marks and citations omitted]).
Thus, plaintiff is entitled to summary judgment in his favor on the Labor Law § 240 (1) claim against the JDS defendants, and the JDS defendants are not entitled to summary judgment dismissing the same.
The Labor Law § 241 (6) Claim (Motion Sequence Numbers 004 and 007)
The JDS defendants and Sampogna move for summary judgment dismissing the Labor Law § 241 (6) claims against them.
Labor Law § 241 (6) provides, in pertinent part, as follows:
"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: * * *
(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate
protection and safety to the persons employed therein or lawfully frequenting such places."
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348 [1998]; see also Ross, 81 N.Y.2d at 501-502). Importantly, to sustain a Labor Law § 241 (6) claim, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (Ross, 81 N.Y.2d at 505). Such violation must be a proximate cause of the plaintiff's injuries (Annicaro v Corporate Suites, Inc., 98 A.D.3d 542, 544 [2d Dept 2012]).
As an initial matter, as discussed above, Sampogna is neither an owner, general contractor or an agent of either. Accordingly, Sampogna is entitled to summary judgment dismissing the Labor Law § 241 (6) claims against it.
Next, the JDS defendants' sole argument with respect to the Labor Law § 241 (6) claim is that plaintiff was the sole proximate cause of his accident and, therefore, all alleged violations of the Industrial Code must be denied. The JDS defendants fail to identify or address any specific Industrial Code provisions in their motion or explain why any of those provisions were not violated.
While the JDS defendants raise specific arguments to the alleged Industrial Code provisions for the first time in their reply brief, the court may not consider such argument (see e.g. Walkow v MJ Peterson/Tucker Homes, LLC, 185 A.D.3d 1463, 1466 [4th Dept 2020] [where a party never addressed certain Industrial Code provisions in its motion, the court "may not rely on [] reply submissions to remedy that deficiency"]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 A.D.2d 624, 626 [1st Dept 1995] ["Arguments advanced for the first time in reply papers are entitled to no consideration by a court entertaining a summary judgment motion").
Accordingly, the JDS defendants - by not identifying or explaining why any of the Industrial Code provisions relied on by plaintiff did not apply or were not violated - have failed to establish, prima facie, that the alleged Industrial Code provisions were not violated as a matter of law. Thus, the JDS defendants are not entitled to summary judgment dismissing the Labor Law § 241 (6) claims against them.
The Common-Law Negligence and Labor Law § 200 Claims (Motion Sequence Numbers 004 and 007)
Sampogna and the JDS defendants move for summary judgment dismissing the commonlaw negligence and Labor Law § 200 claims against them.
Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Singh v Black Diamonds LLC, 24 A.D.3d 138, 139 [1st Dept 2005], citing Comes v New York State Elec. &Gas Corp., 82 N.Y.2d 876, 877 [1993]). Labor Law § 200 (1) states, in pertinent part, as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
There are two distinct standards applicable to § 200 cases, depending on the kind of situation involved: (1) when the accident is the result of the means and methods used by a contractor to do its work, and (2) when the accident is the result of a dangerous condition that is inherent in the premises (see Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 144 [1st Dept 2012] ["Claims for personal injury under [section 200] and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed"]).
"Where . . . injury results from the means and methods of the work, an owner [or general contractor] can only be found to be negligent if it exercised actual supervision or control over the work .... [M]ere authority to supervise or control work is insufficient" (Gonzalez v DOLP 205 Props. II, LLC, 206 A.D.3d 468, 471 [1st Dept 2022]; Naughton v City of New York, 94 A.D.3d 1, 11 [1st Dept 2012] ["[L]iability can only be imposed against a party who exercises actual supervision of the injury-producing work"]). "General supervisory authority is insufficient to constitute supervisory control" (Hughes v Tishman Constr. Corp., 40 A.D.3d 305, 306 [1st Dept 2007]).
Where "a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition" (Keating v Nanuet Bd. of Educ., 40 A.D.3d 706, 708 [2d Dept 2007]; Mendoza v Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 9 [1st Dept 2011]).
Here, plaintiff's accident occurred when plaintiff stepped onto an improperly secured piece of metal covering a six-to-ten-foot-deep hole, causing him to fall into the hole. Therefore, plaintiff's accident arose from the manner in which the work was performed - i.e. the failure to properly cover and secure the subject hole. Accordingly, plaintiff's accident implicates the means and methods of the work at the Premises (see Alonzo, 104 A.D.3d at 447, 449 [accident where plaintiff stepped on a plywood cover and fell into a hole "arises out of the means and methods of the work, as opposed to a dangerous condition on the site"]).
Here, there is testimony that JDS Construction's laborers were responsible for "fall protection" at the Project (Hirsh tr at 59) including temporary railings and coverings (id. at 60) and to "safe off openings" (id. at 72). In addition, the daily log for the day of the accident noted that JDS was cleaning the exterior "outside C4" and "[p]repped platforms in C4" (the JDS defendants' notice of motion, exhibit S; NYSCEF Doc No. 189). The record also establishes that plaintiff's accident occurred in a cluster of townhouses delineated as cluster 4, or C4.
Therefore, the evidence establishes that JDS Construction's workers were working in the accident area on the day of the accident; and that their work entailed, among other things, safe-ing off openings and providing temporary protection. Accordingly, a question of fact exists about whether JDS Construction had the actual authority to control the injury producing work -securing the cover over the subject hole. Thus, as they raise no other arguments to support dismissing this claim, the JDS defendants are not entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it.
As to Sampogna, its workers were present in the accident area on both the day of the accident and the day before. The daily logs indicate that Sampogna was "[s]etting forms for entries in C4" on those days (the JDS defendants' notice of motion, exhibit S; NYSCEF Doc No. 189). That said, the record does not establish whether Sampogna workers, during the ordinary course of their work at the Premises, removed the hole's original cover and replaced it with the piece of metal that failed to protect against plaintiff's fall. More specifically, Mr. Sampogna was unable to recall any specifics about the jobsite and did not testify as to whether Sampogna workers used pieces of q-decking as temporary covers during their own work. As such, Sampogna has not established, prima facie, its entitlement to dismissal of the common-law negligence and Labor Law § 200 claims against it. Thus, Sampogna is not entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it.
The JDS Defendants' Third-Party Contractual Indemnification Claim against the RCI Defendants (Motion Sequence Numbers 005 and 007)
The JDS defendants move for summary judgment in their favor on their third-party claim for contractual indemnification against the RCI defendants. The RCI defendants move for summary judgment dismissing the same.
"A party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold &Ladder Co., 70 N.Y.2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 N.Y.2d 149, 153 [1973]; see also Tonking v Port Auth. of N.Y. &N.J., 3 N.Y.3d 486, 490 [2004]).
"In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability" (Correia v Professional Data Mgt., 259 A.D.2d 60, 65 [1st Dept 1999]; see also Lexington Ins. Co. v Kiska Dev. Group LLC, 182 A.D.3d 462, 464 [1st Dept 2020] [denying summary judgment where indemnitee "has not established that it was free from negligence"]). Further, unless the indemnification clause explicitly requires a finding of negligence on behalf of the indemnitor, "[w]hether or not the proposed indemnitor was negligent is a non-issue and irrelevant" (Correia, 259 A.D.2d at 65).
Here, as discussed above, the JDS defendants have not established their freedom from any negligence, such that they can establish, prima facie, their entitlement to judgment on their claim for contractual indemnification against the RCI defendants. As discussed above, there are material question of fact as to whether the JDS defendants are free from negligence with respect to plaintiff's accident. Accordingly, the JDS defendants' motion for summary judgment in their favor on their contractual indemnification claim against the RCI defendants must be denied (Lexington Ins. Co. v Kiska Dev. Group LLC, 182 A.D.3d at 464).
Turning to the RCI defendants, they argue that there is no evidence in the record to support that they were negligent. The JDS defendants argue that the applicable indemnification provision does not require a finding of negligence to be applicable to the subject accident. Upon review of the subject agreement between JDS Construction and RCI PLBG, Inc., the court notes that there are two indemnification provisions.
Additional Facts Relevant to this Issue
JDS Construction and RCI PLBG, Inc. entered into an agreement for concrete installation work at the Project (the JDS/RCI Agreement). The JDS/RCI Agreement includes two indemnification provisions, one in the main body of the agreement and one in Rider E to the JDS/RCI Agreement. The contract's indemnification provision [the Indemnification Provision] provides the following:
"To the fullest extent permitted by law, [the RCI defendants] shall indemnify, defend and hold harmless [the JDS defendants] . . . from and against all claims or causes of action, damages, losses and expenses . . . to the extent arising out of or resulting from the acts or omissions of [the RCI defendants] or anyone for whose acts Contractor may be liable . . . in connection with the Contract Documents, the performance of, or failure to perform the Work"(the JDS defendants' notice of motion, exhibit O, ¶ 7; NYSCEF Doc. No. 185). The Indemnification Provision also contains the following clause:
"The foregoing provision is supplemented (and not limited and/or superseded in any manner) by Rider "E" (Indemnification Supplemental Provisions) and any conflict between the forgoing provision and Rider "E" (Indemnification Supplemental Provisions) shall be resolved by the provision that provides the greater indemnity, protection and/or rights to the respective indemnitee"(id. [the Indemnification Governing Clause]).
The indemnification provision found in Rider E to the JDS/RCI Agreement [the Rider Indemnification Provision] provides the following:
"To the fullest extent permitted by law, [the RCI defendants] shall indemnify, defend and hold harmless [the JDS defendants] from and against all claims, damages, losses and expenses . . . to the extent arising out of or resulting from the performance of the Work or [the RCI defendants'] nonperformance of the Work provided that such claim . . . is attributable to bodily injury . . . caused in whole or in part by the negligent acts of [the RCI defendants], [or their] subcontractors"(id. exhibit O, Rider E, section [a], the Rider Indemnification Provision).
The Indemnification Provision requires the RCI defendants to indemnify the JDS defendants "from and against all claims or causes of action . . . arising out of or resulting from the acts or omissions of [the RCI defendants] or anyone for whose acts Contractor may be liable . . ." in connection with the work at the Project (id., Exhibit O, ¶7). The Rider Indemnification Provision, however, limits indemnification to instances "caused in whole or in part by the negligent acts" of the RCI defendants or their subcontractor, Pro Star (plaintiff's employer).
Here, the language of the Indemnification Provision controls, due to the Indemnification Governing Clause (see e.g. Warberg Opportunistic Trading Fund, L.P. v GeoResources, Inc., 112 A.D.3d 78, 83 [1st Dept 2013] ["It is well settled that trumping language such as a 'notwithstanding' provision 'controls over any contrary language' in a contract"]). The Indemnification Provision's governance over "all claims" is inclusive of bodily injury claims. It provides "greater indemnity, protection and/or rights" to the JDS defendants than the more limiting Rider Indemnification provision. Accordingly, pursuant to the Indemnification Governing Clause, the Indemnification Provision takes precedence over the Rider's provision.
Here, the RCI defendants' work included that work performed by its own subcontractor, Pro Star. Plaintiff was employed by Pro Star and was performing work arising from the JDS/RCI Agreement at the time of the accident. Accordingly, the RCI defendants have not established, prima facie, their entitlement to summary judgment dismissing the JDS defendants' contractual indemnification claim against them. Thus, the JDS defendants are not entitled to summary judgment in their favor on their contractual indemnification claims against the RCI defendants, and the RCI defendants are not entitled to summary judgment dismissing the same.
The JDS Defendants' Contractual Indemnification Crossclaim against Sampogna (Motion Sequence Numbers 004 and 007)
Sampogna moves for summary judgment dismissing the JDS defendants' crossclaim for contractual indemnification as against it. The JDS defendants move for summary judgment in their favor on the same claim.
Here, as discussed above, the JDS defendants have not established their freedom from any negligence, such that they can establish, prima facie, entitlement to judgment in their favor on their claim for contractual indemnification against Sampogna (Lexington Ins. Co. v Kiska Dev. Group LLC, 182 A.D.3d at 464). In addition, as discussed above, Sampogna has not established that the accident did not arise from its work at the Project, or from its own negligence. Thus, at this time, Sampogna is not entitled to summary judgment dismissing the JDS defendants' contractual indemnification claims against it, and the JDS defendants are not entitled to summary judgment in their favor on the same claim.
The Contribution and Common-Law Negligence Third-Party Claims against RCI (Motion Sequence Numbers 004 and 005)
The RCI defendants move for summary judgment dismissing the contribution and common-law negligence claims against them.
"Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person" (Godoy v Abamaster of Miami, 302 A.D.2d 57, 61 [2d Dept 2003] [internal quotation marks and citations omitted]). "To establish a claim for common-law indemnification, 'the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident'" (Perri v Gilbert Johnson Enters., Ltd., 14 A.D.3d 681, 684-685 [2d Dept 2005], quoting Correia v Professional Data Mgt., 259 A.D.2d at 65); see also Spielmann v 170 Broadway NYC LP, 187 A.D.3d 492 [1st Dept 2020]). In other words, a claim for commonlaw indemnification is actionable only where a party has been found to be "vicariously liable without proof of any negligence . . . on its own part" (McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011]).
The RCI defendants argue that they cannot be found liable under contribution or common-law indemnification theories because they were not the actively negligent party with respect to plaintiff's accident. Specifically, RCI argues that they were not responsible for covering or securing the subject hole that plaintiff fell into. In opposition, the JDS defendants argue that the RCI defendants were negligent because, allegedly, Pro Star's supervisor failed to inform plaintiff that he should not walk in the accident area.
The JDS defendants do not contest that RCI was not responsible for covering or securing the subject hole. Rather, their argument addresses only the purported negligent supervision of a Pro Star employee by a Pro Star supervisor. There is no evidence in the record that Pro Star's employees were supervised or directed by the RCI defendants. Accordingly, the JDS defendants' argument does not raise a question of fact as to the RCI defendants' negligence. Thus, the RCI defendants are entitled to summary judgment dismissing the contribution and common-law negligence claims as against them.
To the extent that Sampogna moved for summary judgment dismissing the contribution and common-law negligence claims against it, it does not address said claims. Accordingly it is not entitled to summary judgment dismissing these claims.
The JDS Defendants Breach of Contract for the Failure to Procure Insurance Claims (Motion Sequence Number 004, 005 and 007)
The JDS defendants move for summary judgment in their favor on their breach of contract for the failure to procure insurance claims against the RCI defendants and Sampogna. The RCI defendants and Sampogna move for summary judgment dismissing the same.
Here, both Sampogna and the RCI defendants provided copies of their relevant insurance policies. Accordingly, the JDS defendants are not entitled to summary judgment in their favor on their claim for breach of contract for the failure to procure insurance claims against Sampogna or the RCI defendants. Additionally, even though Sampogna and the RCI defendants failed to address this claim in their own motions, by operation of law - given the uncontroverted evidence before the court - both are entitled to summary judgment dismissing the same claim as against them.
The parties' remaining arguments have been considered and were found unavailing.
Accordingly, for the foregoing reasons, it is
ORDERED that the motion of defendant Sampogna Group, Inc. (Sampogna) (motion sequence number 004), pursuant to CPLR 3212, for summary judgment dismissing the complaint and all crossclaims against them is granted to the extent that the Labor Law §§ 240 (1) and 241 (6) claims and the claims for breach of contract for failure to procure insurance are dismissed, and the remainder of the motion is denied; and it is further
ORDERED that the motion of third-party defendants RCI PLBG, Inc. and RCI Plumbing Corp. (together, the RCI defendants) (motion sequence number 005), pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint and all crossclaims against them is granted to the extent that the claims for common-law indemnification and breach of contract for the failure to procure insurance are dismissed, and the remainder of the motion is denied; and it is further
ORDERED that the motion of plaintiff Jose Guillermo Munoz (motion sequence number 006), pursuant to CPLR 3212, for summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against defendants JDS Seagirt LLC (Seagirt), JDS Development, LLC and JDS Construction Group, LLC (together, the JDS defendants) is granted; and it is further
ORDERED that the JDS defendants' motion (motion sequence number 007), pursuant to CPLR 3212, for summary judgment dismissing the complaint, as well as for summary judgment in their favor on their claims for contractual and common-law indemnification and breach of contract for the failure to procure insurance against Sampogna and the RCI defendants is denied.