Opinion
26926/2002.
Decided November 9, 2005.
Steven Aripotch Esq., O'Dwyer Bernstein, New York, NY, for Plaintiff.
Sara Luca Salvi Esq., Mead, Hecht, Conklin Gallagher, LLP, Mamaroneck, NY, for Defendant Stein.
Alex Monfasani Esq. Gould Cimino New York, NY, for Defendant Murray Hill Mews Owners Corp.
Sean King Esq., Molod Spitz DeSantis, P.C., New York, NY, for Defendant Spring Scaffolding Inc.
Eileen Farrell Esq., White, Quinlan Staley, L.L.P., Garden City, NY, for Defendant York Restoration Corp.
Mario C. Giannettino Esq., Wilson Elser Moskowitz Edelman Dicker LLP, New York, NY, for Third Party Defendant M.H.M. Parking Corp.
I. UNDISPUTED BACKGROUND FACTS
Defendant and third party plaintiff Murray Hill Mews Owners Corp. owns an apartment building at 160 East 38th Street in New York County. Murray Hill hired defendant general contractor York Restoration Corp. to restore the building facade. York Restoration hired defendant subcontractor Spring Scaffolding Inc. to erect a sidewalk bridge over the sidewalk along Third Avenue between 37th and 38th Streets. Their contract required Spring Scaffolding to install lighting under the sidewalk bridge, for which Spring Scaffolding hired an electrical contractor, plaintiff's employer. The parties have stipulated to the admissibility of the contracts between them for the work described.
The sidewalk and sidewalk bridge along Third Avenue between 37th and 38th Streets extended across two driveways entering and exiting a parking garage owned by third party defendant M.H.M. Parking Corp., a tenant of the building. The building owner Murray Hill and tenant M.H.M. Parking also have stipulated to the admissibility of their lease.
On August 16, 2002, plaintiff erected an A-frame ladder to install lighting on the segment of the sidewalk bridge between the garage entrance and exit and was standing on the ladder installing lighting. He claims no defect in the ladder he was using. No pylons, stanchions, or other protective devices or warnings were placed near the garage driveways to prevent drivers entering or exiting the garage from inadvertently veering onto the sidewalk in between and adjacent to the driveways.
Defendant Stein entered the parking garage in the exit lane instead of the entrance lane, then backed up to maneuver into the entrance lane, and veered onto the sidewalk area between the two lanes, striking plaintiff's ladder. To avoid falling, plaintiff grabbed an overhead metal beam. In the process, he lacerated his wrist on the metal edge of an overhead light fixture.
II. MOTIONS FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT
Spring Scaffolding moves, and Murray Hill and York Restoration cross-move, for summary judgment dismissing the complaint against them. Spring Scaffolding and York Restoration also move and cross-move for summary judgment dismissing all cross-claims against each of these two defendants. Murray Hill, York Restoration, and Spring Scaffolding each claims it exercised no supervision or control over the lighting installation and did not supply any equipment to the electrical contractor or its employees for that work. Plaintiff stipulates to dismissing his claims against Murray Hill, York Restoration, and Spring Scaffolding based on New York Labor Law § 200 and ordinary negligence.
Spring Scaffolding is not liable for the independent electrical contractor's negligence, unless Spring Scaffolding delegated a non-delegable duty imposed by statute or regulation or imposed because of the inherently dangerous work delegated. Chainani v. Board of Educ., 87 NY2d 370, 380-81 (1995); Kleeman v. Rheingold, 81 NY2d 270, 274-75 n. 2 (1993); Rosenberg v. Equitable Life Assurance Soc., 79 NY2d 663, 668-69 (1992). Spring Scaffolding also may be liable for its own negligence in selecting, instructing, or supervising the independent contractor. Kleeman v. Rheingold, 81 NY2d at 274 n. 1. Here, no evidence indicates that the lighting installation was inherently dangerous, or that Spring Scaffolding's selection of the electrical contractor was negligent, or that such negligence in any event caused plaintiff's injury. New York Labor Law §§ 240-41 impose non-delegable duties to plaintiff on the building owner Murray Hill and general contractor York Restoration, subjecting them to liability for a violation even if an independent contractor over which they exercised no supervision or control performed the work that caused injury, and they had no notice of worksite conditions. Coleman v. City of New York, 91 NY2d 821, 822-23 (1997); Gordon v. Eastern Ry. Supply, 82 NY2d 555, 559-60 (1993); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 (1993); Lombardi v. Stout, 80 NY2d 290, 295 (1992). As for Spring Scaffolding, if it does not fit into the category of owner or general contractor, the only issues are whether Spring Scaffolding directed or supervised plaintiff's employer or its employees' work in any way, and Spring Scaffolding's negligent direction or supervision led to plaintiff's injury.
On these issues, the deposition testimony of Spring Scaffolding's own witness, Virgil Lupa, at minimum raises factual questions as to this subcontractor's supervision or control over the lighting installation. He testified that Spring Scaffolding's employees were at the worksite the day plaintiff was injured and that not only if electrical workers were impeding Spring Scaffolding's space on the project, but also if they were performing their work unsafely, Spring Scaffolding had the authority to stop them. Thus, if plaintiff's placement of his ladder was impeding the sidewalk bridge area, or he was using the ladder unsafely near the garage driveways, and Spring Scaffolding negligently failed to stop him, it would be liable.
Given the potential basis for liability against each of these defendants, Murray Hill, York Restoration, and Spring Scaffolding, the court determines the viability of plaintiff's statutory claims against them below.
III. SUMMARY JUDGMENT AGAINST THE OWNER MURRAY HILL AND GENERAL CONTRACTOR YORK RESTORATION ON LIABILITY
Plaintiff cross-moves for partial summary judgment against the owner Murray Hill, general contractor York Restoration, and subcontractor Spring Scaffolding, on liability for their violation of New York Labor Law § 240(1). Section 240(1) requires that:
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.
A failure to provide adequate safety devices as required by this statute imposes absolute liability on the owner and general contractor if that failure proximately caused plaintiff's injury. Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46, 50 (2004); Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 (2003); Striegel v. Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 (2003); Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 (1991).
To establish any defendant's liability under this statute, plaintiff must show a causal connection between a violation and his injury. Selja v. American Home Prods. Corp., 307 AD2d 840, 841 (1st Dep't 2003). The most obvious cause of plaintiff's injury was Stein's vehicle, travelling horizontally into plaintiff's ladder. Under such an impact, likely no device could have stabilized the ladder sufficiently to prevent it from moving and protect plaintiff from losing his footing. It is conceivable, however, that a harness or belt around him or other device secured to the scaffold ceiling could have safely prevented his fall when he lost his footing on the ladder, without his resort to alternative risky measures; devices beneath the ladder steps could have cushioned a fall; or different placement of the ladder could have averted a fall.
A. Elevation Related Risk
Although plaintiff has not conclusively shown that his ladder was unstable or otherwise defective, and in fact the evidence points to the contrary, his injury still resulted from an elevation related risk. Gordon v. Eastern Ry. Supply, 82 NY2d at 561; Serpe v. Eyris Prods., 243 AD2d 375, 377 (1st Dep't 1997); Carpio v. Tishman Constr. Corp. of NY, 240 AD2d 234, 235 (1st Dep't 1997); Bailey v. Board of Educ. of Skaneateles Cent. School Dist., 19 AD3d 1064, 1065 (4th Dep't 2005). The fact that a force precipitated on the whole work area, rather than a weakness or defect in a safety device, caused plaintiff's injury does not remove it from the ambit of Labor Law § 240(1). Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d 173, 175 (1st Dep't 2004); Nunez v. Bertelsman Prop., 304 AD2d 487, 488 (1st Dep't 2003); Dunn v. Consolidated Edison Co. of NY, 272 AD2d 129 (1st Dep't 2000); Dasilva v. A.J. Contr. Co., 262 AD2d 214 (1st Dep't 1999). Working at an elevation may not have increased plaintiff's risk of being struck by a vehicle, but because plaintiff was on a ladder when Stein's vehicle struck, he was in danger of falling from the elevated ladder step to the ground and averted that danger by grabbing a beam overhead. Narducci v. Manhasset Bay Assocs., 96 NY2d 259, 268 (2001); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501; Rocovich v. Consolidated Edison Co., 78 NY2d at 514. Moreover, while the ladder may not have been unstable due to the lack of stabilizing devices, the ladder did move from under him, causing him to grab overhead to prevent himself from falling. Nelson v. Ciba-Geigy, 268 AD2d 570, 572 (2nd Dep't 2000). See Alomia v. New York City Tr. Auth., 292 AD2d 403, 405 (1st Dep't 2002). That effort to avoid falling downward injured him. See Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d at 175; Fernandes v. Equitable Life Assur. Socy. of United States, 4 AD3d 214, 215 (1st Dep't 2004); Skow v. Jones, Lang Wooton Corp., 240 AD2d 194, 195 (1st Dep't 1997); Sasso v. NYMED, Inc., 238 AD2d 799, 800 (3rd Dep't 1997).
In contrast, had plaintiff been standing on the sidewalk when Stein's vehicle struck, it likely would have injured him also, perhaps worse, but the injury would have been different: not the result of avoiding a fall from an elevation. Just as a painter of a ceiling did not increase his risk of backing into a hole by being on the third floor, but suffered a different injury from falling through the floor than had he encountered a hole on the ground floor, so, too, was plaintiff knocked from a ladder, not knocked over on the ground, causing a different injury due to the different risk posed by his elevated site. Carpio v. Tishman Constr. Corp. of NY, 240 AD2d at 235-36. See Narducci v. Manhasset Bay Assocs., 96 NY2d at 268; Bailey v. Board of Educ. of Skaneateles Cent. School Dist., 19 AD3d at 1065. Plaintiff's attempt to avoid falling thus was related to the risk inherent in his elevation from the ground. Narducci v. Manhasset Bay Assocs., 96 NY2d at 267-68; Bailey v. Board of Educ. of Skaneateles Cent. School Dist., 19 AD3d at 1065. See Skow v. Jones, Lang Wooton Corp., 240 AD2d at 195; Sasso v. NYMED, Inc., 238 AD2d at 800; Wensley v. Argonox Constr. Corp., 228 AD2d 823, 824 (3rd Dep't 1996).
B. Proper Protective Devices
The fact that plaintiff was injured from falling or avoiding a fall due to his elevated position does not mean, in itself, that he was not provided proper protection from this elevation related risk and that the lack of such protection contributed to his injury. Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d at 288-89; Narducci v. Manhasset Bay Assocs., 96 NY2d at 267; Peritone v. Don-Alan Realty Assoc., Inc., 18 AD3d 846, 848 (2nd Dep't 2005); Nelson v. Ciba-Geigy, 268 AD2d at 571-72. While the ladder moved, it moved because it was subjected to an external force unrelated to the installation of lighting overhead or to plaintiff's elevated position.
That impact was not unrelated to plaintiff's position in the sidewalk bridge area near the garage driveways. Devices such as pylons, stanchions, or other warnings placed near the garage driveways or different placement of ladders in the sidewalk bridge area may well have protected against drivers inadvertently veering onto the sidewalk near the driveways and striking the ladders. Nonetheless, these measures are not the elevation related devices, to protect against a fall toward the ground, contemplated by Labor Law § 240(1). Striegel v. Hillcrest Hgts. Dev. Corp., 100 NY2d at 978; Narducci v. Manhasset Bay Assocs., 96 NY2d at 268-69; Shipkoski v. Watch Case Factory Assoc., 292 AD2d 587, 588 (2nd Dep't 2002). See Rocovich v. Consolidated Edison Co., 78 NY2d at 515; Gottstine v. Dunlop Tire Corp., 272 AD2d 863, 864 (4th Dep't 2000); Sasso v. NYMED, Inc., 238 AD2d at 799-800. Section 240(1) is intended to protect against particular hazards; it does not establish liability where a failure to protect against a different hazard occasioned injury. Narducci v. Manhasset Bay Assocs., 96 NY2d at 267; Nieves v. Five Boro Air Conditioning Refrig. Corp., 93 NY2d 914, 916 (1999); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500-501; Rocovich v. Consolidated Edison Co., 78 NY2d at 513-14.
The current record suggests nothing in the nature of elevation related devices, whether to secure plaintiff to the scaffold ceiling or to cushion or catch a fall as speculated above, or otherwise, the absence or inadequacy of which caused his injury. Narducci v. Manhasset Bay Assocs., 96 NY2d at 268; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501; Rocovich v. Consolidated Edison Co., 78 NY2d at 514; Peritone v. Don-Alan Realty Assoc., Inc., 18 AD3d at 848. See Kyle v. City of New York, 268 AD2d 192, 198 (1st Dep't 2000); Serpe v. Eyris Prods., 243 AD2d at 377; Skow v. Jones, Lang Wooton Corp., 240 AD2d at 194-95; Bailey v. Board of Educ. of Skaneateles Cent. School Dist., 19 AD3d at 1065. Although the statutory requirement extends beyond the devices listed in Labor Law § 240(1), or customarily used, or even currently developed, it is limited to devices to protect against a fall. Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 523-24 (1985); Charles v. Eisenberg, 250 AD2d 801 (2nd Dep't 1998). Consequently, even if plaintiff's injury was due to his elevated position, factual questions remain whether that risk could have been obviated by defendants' provision of protective devices to protect against a fall, so defendants' failure to provide such protection proximately caused plaintiff's injury. Narducci v. Manhasset Bay Assocs., 96 NY2d at 268; Peritone v. Don-Alan Realty Assoc., Inc., 18 AD3d at 848; Shipkoski v. Watch Case Factory Assoc., 292 AD2d at 589; Nelson v. Ciba-Geigy, 268 AD2d at 572. See Striegel v. Hillcrest Hgts. Dev. Corp., 100 NY2d at 978; Kyle v. City of New York, 268 AD2d at 198; Serpe v. Eyris Prods., 243 AD2d at 377; Bailey v. Board of Educ. of Skaneateles Cent. School Dist., 19 AD3d at 1065.
While plaintiff need not demonstrate that a vehicle veering onto the sidewalk was foreseeable, he does bear the burden to demonstrate that a risk of an elevation related injury from defendants' failure to provide adequate protection was foreseeable. Thus if plaintiff establishes that an injury from a fall or avoiding a fall was a foreseeable result of installing lighting from an elevated position on the sidewalk bridge, adjacent to vehicular traffic, the conduct by defendant Stein, whose vehicle veered onto the sidewalk, does not supersede and negate the responsibility of the owner and general contractor under Labor Law § 240(1). Gordon v. Eastern Ry. Supply, 82 NY2d at 562; Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d at 175; Nunez v. Bertelsman Prop., 304 AD2d at 488; Alomia v. New York City Tr. Auth., 292 AD2d at 405.
In sum, Labor Law § 240(1) applies to plaintiff's injury, but the current record does not establish, as a matter of law, that he was not provided adequate protective measures. Selja v. American Home Prods. Corp., 307 AD2d at 841; Weber v. 1111 Park Ave. Realty Corp., 253 AD2d 376, 378 (1st Dep't 1998); Shipkoski v. Watch Case Factory Assoc., 292 AD2d at 589; Gottstine v. Dunlop Tire Corp., 272 AD2d at 864. If those defendants to whom the statute applies failed to provide adequate protection, then despite Stein's undisputed negligence, discussed below, it did not completely sever all connection between the other defendants' failure and plaintiff's injury. On the other hand, since the point of Labor Law § 240(1) is to compel owners and contractors to provide a safe workplace, if they did so, they are not liable. Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d at 286. Therefore the court denies the motion and cross-motions by Murray Hill, York Restoration, and Spring Scaffolding for summary judgment insofar as they seek to dismiss plaintiff's claim under Labor Law § 240(1). C.P.L.R. § 3212(b). The court grants plaintiff's cross-motion for partial summary judgment against Murray Hill and York Restoration only to the extent of determining that the statute applies due to his elevation related injury and otherwise denies his cross-motion. C.P.L.R. § 3212(b) and (e).
IV. SUMMARY JUDGMENT AGAINST THE SUBCONTRACTOR SPRING SCAFFOLDING ON LIABILITY
For the subcontractor Spring Scaffolding to be absolutely liable for a violation of Labor Law § 240(1), the subcontractor must have been York Restoration's agent or an owner in its own right of the building or structure being erected, repaired, altered, or cleaned. If Spring Scaffolding qualifies as an agent or owner under the statute, this defendant is liable to plaintiff for a violation on the same basis as Murray Hill and York Restoration, regardless of Spring Scaffolding's supervision or control of plaintiff's work.
A. Subcontractor as Agent
To be York Restoration's agent in carrying out the work plaintiff was performing when he was injured, Spring Scaffolding must have had the authority to supervise and control that work and insist that adequate safety practices be followed. Walls v. Turner Constr. Co., 4 NY3d 861, 863-64 (2005); Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d at 293; Russin v. Picciano Son, 54 NY2d 311, 318 (1981); Serpe v. Eyris Prods., 243 AD2d at 379-80. The contract between York Restoration and Spring Scaffolding delegates all work in erecting the sidewalk bridge and installing its lighting to the subcontractor. This contract itself places the subcontractor squarely in the position to carry out the full scope of that delegated work and thus vests the subcontractor with full authority to control all facets of the sidewalk bridge's construction. Walls v. Turner Constr. Co., 4 NY3d at 864; Russin v. Picciano Son, 54 NY2d at 318. Lupa's uncontradicted testimony, moreover, that Spring Scaffolding had the authority to stop the electrical workers' unsafe work, further establishes the requisite agency.
B. Subcontractor as Owner of a Structure
Although Spring Scaffolding did not own Murray Hill's apartment building at 160 East 38th Street, where the building facade was to be repaired, altered, or cleaned, Spring Scaffolding owned the sidewalk bridge or scaffolding that the subcontractor was hired to erect and in which it was to install lighting. The contract between York Restoration and Spring Scaffolding repeatedly refers to the latter as the "owner" of the sidewalk bridge, "renting" it, as an owner does, to the general contractor. Aff. of Salvatore J. DeSantis, Ex. J. See Landgraff v. 1579 Bronx Riv. Ave., LLC, 18 AD3d 385, 386 (1st Dep't 2005); Torino v. KLM Constr., 257 AD2d 541, 542 (1st Dep't 1999).
While the sidewalk bridge was not a "building" undergoing construction under Labor Law § 241, the sidewalk bridge does qualify as a "structure" under Labor Law § 240(1): any "production or piece of work artificially built up or composed of parts joined together in some definite manner." Smith v. Shell Oil Co., 85 NY2d 1000, 1001-1002 (1995); Lewis-Moors v. Contel of NY, 78 NY2d 942, 943 (1991); Cornacchione v. Clark Concrete Co., 278 AD2d 800, 801 (4th Dep't 2000). See Gordon v. Eastern Ry. Supply, 82 NY2d at 560; Moore v. Shulman, 259 AD2d 975 (4th Dep't 1999). Plaintiff's installation of lighting in that structure either was part of the structure's erection or constituted an alteration of the structure after its erection. Weininger v. Hagedorn Co., 91 NY2d 958, 959-60 (1998); Guzman v. Gumley-Haft. Inc., 274 AD2d 555, 556 (2nd Dep't 2000). See Kyle v. City of New York, 268 AD2d at 197; Piccione v. 1165 Park Ave., 258 AD2d 357, 358 (1st Dep't 1999).
Thus, regardless whether Spring Scaffolding qualifies as an agent under Labor Law § 240(1), this defendant is an owner under the statute, subject to liability for a violation on the same basis as Murray Hill and York Restoration. The court therefore (1) denies Spring Scaffolding's motion for summary judgment insofar as Spring Scaffolding seeks to dismiss plaintiff's Labor Law § 240(1) claim and (2) grants, in limited part, and otherwise denies plaintiff's cross-motion for partial summary judgment against Spring Scaffolding on the same bases as determined regarding Murray Hill and York Restoration. C.P.L.R. § 3212(b) and (e).
V. PLAINTIFF'S CLAIM AGAINST THE OWNER MURRAY HILL, GENERAL CONTRACTOR YORK RESTORATION, AND SUBCONTRACTOR SPRING SCAFFOLDING UNDER LABOR LAW § 241(6)
Plaintiff does not cross-move for partial summary judgment on liability for violation of Labor Law § 241(6), but the owner Murray Hill, general contractor York Restoration, and subcontractor Spring Scaffolding still seek summary judgment dismissing that claim against them. Section 241 requires that:
All contractors and owners and their agents, . . . when constructing or demolishing buildings . . ., shall comply with the following requirements:
. . . .
6.All areas in which construction . . . 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. . . . The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply forthwith.
The duty to comply with the regulations under § 241(6) is also non-delegable, subjecting the building owner, general contractor, and any agent to liability for a violation even if they exercised no supervision or control and had no notice of worksite conditions. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502-503. A failure to provide the safety devices required by this statute, proximately causing injury, however, does not impose absolute liability, but only constitutes evidence of negligence. Id. at 502 n. 4.
Plaintiff claims that defendants violated 12 N.Y.C.R.R. § 23-1.29(a), which requires that:
Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons.
This regulation's specific mandate supports plaintiff's claim under Labor Law § 241(6). McGuinness v. Hertz Corp., 15 AD3d 160, 161 (1st Dep't 2005); Lamuraglia v. New York City Tr. Auth., 299 AD2d 321, 324 (2nd Dep't 2002).
A. Timeliness of Plaintiff's Claim
Plaintiff did not claim a violation of this regulation, however, until serving his Third Supplemental Bill of Particulars November 1, 2004, without seeking permission to supplement his bill of particulars a third time, but before filing a note of issue November 23, 2004. C.P.L.R. § 3042(b). This "supplemental" bill does not pertain to continuing damages, which would be permitted automatically until 30 days before trial. C.P.L.R. § 3043(b). Consequently, part of Murray Hill's cross-motion is to strike this pleading.
Plaintiff's original bill of particulars in response to Murray Hill's demand specified only that Murray Hill was negligent "in failing to properly barricade" plaintiff's working conditions and "in violating the laws of the State of New York." Aff. of Alex Monfasani, Ex. H ¶ 4 (Nov. 16, 2004). An amendment remedying the failure in plaintiff's complaint or bill of particulars to identify the specific regulation violated, however, merely amplifies and elaborates on the facts and theory of liability set forth in those prior pleadings. Adams v. Santa Fe Constr. Corp., 288 AD2d 11, 12 (1st Dep't 2001); Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 (1st Dep't 2000). Plaintiff alleges no new facts or cause of action in his third supplemental bill to make out a violation of the regulation cited. Id. at 232-33. See C.P.L.R. § 3043(b). Even though plaintiff has not cross-moved for permission to serve the amendment, since it causes no identified prejudice to defendants, the court permits his Third Supplemental Bill of Particulars served November 1, 2004. C.P.L.R. § 3043(c); Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d at 232-33.
B. Merits of Plaintiff's Claim
The record reveals evidence that plaintiff was performing construction work in close proximity to, if not over or on, a street, Third Avenue, and two driveways entering and exiting a parking garage, where public vehicular traffic could be hazardous to him. McGuinness v. Hertz Corp., 15 AD3d at 161. Yet the facts disclose no fence, barricade, or persons to direct or control that traffic. 12 N.Y.C.R.R. § 23-1.29(a). Thus the factual record at minimum raises issues as to whether plaintiff's work or work area could have been equipped, guarded, arranged, operated, or conducted with a fence, barricade, or designated persons to direct or control that traffic and provide him reasonable and adequate protection and safety. NY Labor Law § 241(6); 12 N.Y.C.R.R. § 23-1.29(a). Any one of these devices reasonably could have alerted traffic entering and exiting the garage and prevented a vehicle from veering onto the sidewalk between the entrance and exit and striking plaintiff or his ladder.
Again, even if Stein's negligence was the immediate cause of plaintiff's injury, it remains for the fact finder at trial to determine whether the hazard her vehicle posed was a foreseeable consequence of the nearby traffic and the failure of defendants to which Labor Law § 241(6) applies to provide adequate protection. If such a hazard was foreseeable, Stein's intervening negligence did not sever the causal connection between the other defendants' failure and plaintiff's injury. Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315-16 (1980). Her negligence certainly is a basis for apportioning liability between her and other defendants, but does not, as a matter of law, absolve them completely. Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d at 176; Lamuraglia v. New York City Tr. Auth., 299 AD2d at 324. Therefore the court denies the motion and cross-motions by Murray Hill, York Restoration, and Spring Scaffolding for summary judgment dismissing plaintiff's claim under Labor Law § 241(6).
VI. SUMMARY JUDGMENT AGAINST STEIN ON LIABILITY
On May 18, 2005, for the reasons explained below, the court granted plaintiff's motion for partial summary judgment against Stein on liability for her negligence. C.P.L.R. § 3212(b) and (e). She admits observing plaintiff on a ladder between the two lanes in and out of the garage as she entered in the exit lane, but she failed to observe him and the direction she was heading when she pulled out in reverse.
New York Vehicle and Traffic Law (VTL) § 1211(a) requires that: "The driver of a vehicle shall not back the same unless such movement can be made with safety. . . ." Based on Stein's own testimony and the other undisputed facts, Stein failed to take adequate precautions to assure that she would not veer off the garage driveway or strike any person or object off the driveway, particularly a stationary, observable object on the sidewalk. Garcia v. Verizon NY, Inc., 10 AD3d 339, 340 (1st Dep't 2004); Pressner v. Serrano, 260 AD2d 458, 459 (2nd Dep't 1999). Even if plaintiff's ladder was actually in the driveway, Stein, by failing to observe and avoid plaintiff's ladder, was indisputably negligent and is liable for the injuries her negligence caused.
VII. SUMMARY JUDGMENT ON THE THIRD PARTY COMPLAINT
Third party defendant M.H.M. Parking, the operator of the parking garage and a tenant of third party plaintiff Murray Hill's building, separately moves for summary judgment dismissing Murray Hill's third party complaint for indemnification and contribution by M.H.M. Parking. In response, Murray Hill cross-moves for summary judgment on the third party complaint's contractual and implied indemnity claims, as well as on Murray Hill's cross-claims in the main action for contractual and implied indemnity against York Restoration.
The lease between tenant M.H.M. Parking and landlord Murray Hill requires the tenant to indemnify the landlord for its liability arising from an injury "in or about" the area leased for the garage. Aff. of Mario C. Giannettino, Ex. M § 18.02. No evidence indicates that M.H.M. Parking played any part in the facade restoration. Plaintiff does not sue M.H.M Parking directly for any Labor Law violations or on any other basis. M.H.M. Parking's use and occupancy of the leased premises by operating the garage, however, played a part in causing plaintiff's injury. If M.H.M. Parking had not been using those premises as a parking garage, plaintiff would not have been injured as he was.
Moreover, the deposition testimony and photographs it identifies suggest that the failure to direct traffic entering the garage, its placement of the entrance lane on the left and the exit lane on the right, or the lack of clear, unobstructed demarcation between the entrance and exit lanes may have misguided drivers such as Stein. According to the deposition testimony of M.H.M. Parking's garage manager, he was aware of the specific danger posed by traffic entering and exiting the garage, because he warned electricians such as plaintiff of that danger when the garage manager observed them setting up ladders and attaching lights to the scaffold near the garage entrance. The garage manager also may have contributed to plaintiff's injury by affirmatively directing Stein to back out of the garage's exit ramp so as to turn and enter using the entrance lane.
Furthermore, the undisputed evidence establishes that the building owner Murray Hill neither was present at plaintiff's worksite the day plaintiff was injured, nor directed, supervised, or exercised any control over the garage or the vehicles entering or exiting it. The lease places this responsibility squarely on M.H.M. Parking, which is to designate entrance and exit areas and station an employee as an attendant at the entrance areas. Id. § 3.01. The lease further obligates M.H.M. Parking to maintain the "sidewalks, driveways, areas, curbs, and the like in front of the entrances to and the exits from the demised premises" in safe condition, free from "obstructions or encumbrances." Id. § 8.01(b).
While M.H.M. Parking maintained responsibility for and control over the garage entrance and exit involved in plaintiff's injury, and Murray Hill remained uninvolved, indemnification does not depend on M.H.M. Parking's negligence in exercising that responsibility or control. NY Gen. Oblig. Law § 5-321; De La Rosa v. Philip Morris Mgt. Corp., 303 AD2d 190, 193 (1st Dep't 2003); Correia v. Professional Data Mgt., 259 AD2d 60, 64-65 (1st Dep't 1999); Parra v. Ardmore Mgt., 258 AD2d 267, 269 (1st Dep't 1999). The tenant is to indemnify the landlord for all liability based on any injury, "however occurring,"
in or about the demised premises, or in or around the . . . streets, sidewalks or curbs in front of the entrances to or exits from the demised premises . . . growing out of the condition, maintenance, . . . use, occupation or operation of the demised premises, or of the . . . streets, sidewalk or curbs in front of or adjacent thereto.
Giannettino Aff., Ex. M § 18.02.
The only condition to this provision's application to plaintiff's injury is if the landlord's liability is due to "negligence on its part." Id. § 18.01. With this condition, the lease complies with New York General Obligations Law § 5-321's prohibition against contractual indemnification for a party's own negligence. The undisputed evidence establishes that Murray Hill was not present at the premises when plaintiff was injured and never directed, supervised, or exercised any control over, nor provided any equipment or materials to, either (1) the garage or vehicles entering or exiting or (2) the sidewalk bridge construction or lighting installation by plaintiff's employer and its employees. Murray Hill did not create any dangerous condition or potential statutory or regulatory violation at the worksite or near the garage and had no actual or constructive notice of such a condition. Thus no party has any basis to claim Murray Hill's negligence caused plaintiff's injury.
Any liability on Murray Hill's part is solely vicarious under Labor Law §§ 240-41. Even though Murray Hill may have violated one of these statutes or the regulations under § 241(6), that violation would be based on Murray Hill's ownership of the worksite, not Murray Hill's negligence. If Murray Hill is held liable under either § 240(1) or § 241(6), that liability triggers the indemnity owed by M.H.M. Parking to Murray Hill under the parties' lease. McGuinness v. Hertz Corp., 15 AD3d at 161-62; Masciotta v. Morse Diesel Intl., 303 AD2d 309, 311-12 (1st Dep't 2003); Correia v. Professional Data Mgt., 259 AD2d at 64. On that basis, in the event Murray Hill is statutorily liable to plaintiff, the court grants Murray Hill's cross-motion for summary judgment in the third party action insofar as it seeks contractual indemnification from M.H.M. Parking. C.P.L.R. § 3212(b) and (e). Given the contractual indemnification from M.H.M. Parking, determination of Murray Hill's cross-motion insofar as it seeks summary judgment on implied indemnification is academic. M.H.M. Parking's motion for summary judgment dismissing Murray Hill's third party complaint for indemnification and contribution by M.H.M. Parking is also moot and therefore denied.
VIII. SUMMARY JUDGMENT ON INDEMNIFICATION CLAIMS IN THE MAIN ACTION
A. Indemnification of Murray Hill by Stein
Part of Murray Hill's cross-motion in the main action is also for indemnification against Stein. The undisputed evidence that Murray Hill did not direct, supervise, or exercise any control over or provide any equipment or materials to the garage operations or the sidewalk bridge construction or lighting installation plaintiff was performing establishes conclusively that Murray Hill's negligence did not cause his injury. Since Murray Hill, though faultless, still may be vicariously liable to plaintiff under Labor Law § 240(1) or § 241(6) despite Stein's fault, her failure to exercise reasonable care and prevent that vicarious liability to the injured party forms the predicate for an implied indemnity claim by Murray Hill. North Star Reins. Corp. v. Continental Ins. Co., 82 NY2d 281, 291 (1993); Mas v. Two Bridges Assoc., 75 NY2d 680, 690-91 (1990); Rosado v. Proctor Schwartz, 66 NY2d 21, 24 (1985); McDermott v. City of New York, 50 NY2d 211, 217-18 n. 4 (1980). Stein's duty to indemnify arises even though Stein owed no other duty to Murray Hill. Id. at 218-19 n. 5; City of New York v. Lead Indus. Assn., 222 AD2d 119, 125-26 (1st Dep't 1996). Therefore, if Murray Hill ultimately is liable to plaintiff, it is entitled to indemnification from Stein, whose negligence in causing plaintiff's injury is established. Chapel v. Mitchell, 84 NY2d 345, 347 (1994); North Star Reins. Corp. v. Continental Ins. Co., 82 NY2d at 291; Mas v. Two Bridges Assoc., 75 NY2d at 687-88.
B. Indemnification of Murray Hill by York Restoration
Part of Murray Hill's cross-motion in the third party action is for indemnification against York Restoration in the main action. The same evidence regarding the absence of negligence by Murray Hill that supports its indemnity claims against Stein and M.H.M. Parking likewise supports the owner's indemnity claim against the general contractor.
Murray Hill remained uninvolved and thus non-negligent in the sidewalk bridge construction and lighting installation plaintiff was performing and delegated all responsibility for and control over every element of the facade restoration to York Restoration. Its contractual indemnification of Murray Hill, however, to the extent the contract's indemnity provision is enforceable, NY Gen. Oblig. Law § 5-322.1; Cavanaugh v. 4518 Assoc., 9 AD3d 14, 18-19 (1st Dep't 2004); Linarello v. City Univ. of NY, 6 AD3d 192, 193-94 (1st Dep't 2004); Juliano v. Prudential Sec., 287 AD2d 260, 261-62 (1st Dep't 2001), depends on "the negligent acts or omissions of the Contractor [York Restoration], a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable" in carrying out the contracted work. Aff. or Alex Monfasani, Ex. M § 8.13.1 (Mar. 11, 2005). Implied indemnity, too, ordinarily depends on the potential indemnitor's wrongdoing. Chapel v. Mitchell, 84 NY2d at 347; Correia v. Professional Data Mgt., 259 AD2d at 65; Aragon v. 233 W. 21st St., 201 AD2d 353, 354 (1st Dep't 1994); M.B. Real Estate Dev. Corp., 280 AD2d 457, 458 (2nd Dep't 2001).
Nevertheless, Murray Hill did not exercise any actual supervision or control over the activity causing plaintiff's injury and hired York Restoration to exercise that supervision and control. If Murray Hill is vicariously liable to plaintiff under Labor Law § 240(1) or § 241(6), York Restoration is equally liable. Therefore, even absent evidence of York Restoration's direct supervision or control over the work plaintiff was engaged in or York Restoration's awareness of any dangerous condition within the sidewalk bridge, between the owner and general contractor, the former is entitled to implied indemnity from the latter stemming from a violation under Labor Law §§ 240-41. Mas v. Two Bridges Assoc., 75 NY2d at 687-88, 690; Rosado v. Proctor Schwartz, 66 NY2d at 24; Ortega v. Catamount Constr. Corp., 264 AD2d 323, 324 (1st Dep't 1999); Aragon v. 233 W. 21st St., 201 AD2d at 354.
C. Conclusion
Consequently, in the event Murray Hill is statutorily liable to plaintiff, the court grants (1) Murray Hill's cross-motion for summary judgment in the main action insofar as that cross-motion seeks implied indemnification from Stein and (2) Murray Hill's cross-motion in the third party action insofar as it seeks the same relief against York Restoration in the main action. C.P.L.R. § 3212(b) and (e). Determination of Murray Hill's cross-motion in the third party action for summary judgment on contractual indemnification against York Restoration is therefore unnecessary. First, this alternative relief is particularly problematic in view of the indemnity provision's dependence on negligence by a party or nonparty involved in the contracted work. This specification excludes Stein, who is the only party or nonparty determined negligent, and M.H.M. Parking, which may be the only other one ever determined negligent. More importantly, given the implied indemnification from York Restoration, the alternative relief, contractual indemnification against York Restoration in the main action, is academic.
IX. DISPOSITION
To recapitulate, the court dismisses plaintiff's claims against defendants Murray Hill, York Restoration, and Spring Scaffolding based on Labor Law § 200 and ordinary negligence, pursuant to plaintiff's stipulation. The court permits plaintiff's Third Supplemental Bill of Particulars served November 1, 2004, and denies the motion and cross-motions by Murray Hill, York Restoration, and Spring Scaffolding for summary judgment insofar as they seek to dismiss plaintiff's claims under Labor Law §§ 240(1) and 241(6). The court grants plaintiff's cross-motion for partial summary judgment against Murray Hill, York Restoration, and Spring Scaffolding on his claim under Labor Law § 240(1), only to the extent of determining that the statute applies to all these defendants due to his elevation related injury and to Spring Scaffolding because it was the owner of the sidewalk bridge. The court otherwise denies plaintiff's cross-motion. The court previously granted plaintiff's motion for partial summary judgment against defendant Stein on liability for her negligence.
In the event Murray Hill is statutorily liable to plaintiff, the court grants third party plaintiff Murray Hill's cross-motion for summary judgment in the third party action insofar as it seeks contractual indemnification from third party defendant M.H.M. Parking. The court denies M.H.M. Parking's motion for summary judgment dismissing Murray Hill's third party complaint for indemnification and contribution by M.H.M. Parking as moot. In the event Murray Hill is statutorily liable to plaintiff, the court also grants Murray Hill's cross-motions for summary judgment (1) in the main action insofar as the cross-motion there seeks indemnification from defendant Stein and (2) in the third party action insofar as the cross-motion there seeks implied indemnification from York Restoration in the main action.
The evidence that York Restoration, like Murray Hill, did not direct, supervise, or exercise any control over or provide any equipment or materials to the garage operations or the sidewalk bridge construction or lighting installation plaintiff was performing is equally undisputed. Because this evidence establishes conclusively that York Restoration's negligence did not cause his injury any more than Murray Hill's did, and Stein's negligence in causing his injury is established, the court grants York Restoration's cross-motion for summary judgment insofar as York Restoration seeks to dismiss Stein's cross-claim against York Restoration. The court denies dismissal of all other cross-claims.
All issues relating to disclosure have been resolved by plaintiff's filing of a note of issue, by stipulation, or by the court's order of May 18, 2005. This decision constitutes the court's order. The court will provide copies to the parties' counsel.