Opinion
INDEX NO. 159273/2016 Third-Party Index No. 595324/2017
02-14-2020
FRANK NIETO, Plaintiff, v. CLDN NY LLC, Defendant. CLDN NY LLC Third-Party Plaintiff, v. ECG RETAIL LOGISTICS, LLC Third-Party Defendant.
NYSCEF DOC. NO. 135 PRESENT: HON. ARLENE P. BLUTH Justice MOTION DATE N/A MOTION SEQ. NO. 004
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 004) 111, 112, 113, 114, 115, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 130, 131, 132, 133 were read on this motion to/for JUDGMENT - SUMMARY.
The motion by third-party defendant for summary judgment is denied.
Background
Plaintiff, a maintenance man at a Ralph Lauren store, was replacing the store's ceiling light fixtures on September 30, 2016. While standing on an A-frame ladder, plaintiff lost his balance and fell. Plaintiff alleges that he suffered a traumatic brain injury and required a spinal fusion, both of which have prevented him from returning to work. He brought an action against CLDN NY LLC ("CLDN"), the building owner, who then brought a third-party action against ECG Retail Logistics ("ECG" or "movant"). Plaintiff's employer hired ECG to provide repair services as an independent contractor (NYSCEF Doc. No. 114, page 106). ECG's employee, Santiago Escobar, was supposed to be holding the ladder while plaintiff was on it but was instead several feet away looking at his phone.
Counsel is reminded that, per e-filing rules, each exhibit is to be filed as a separate .PDF, not a single .PDF containing all exhibits. --------
Plaintiff previously moved for summary judgment pursuant to Labor Law § 240(1) on the ground that he fell from an unsecured ladder (NYSCEF Doc. No. 31). On July 23, 2018, this court granted the motion in part and denied the motion in part. This court found that plaintiff was entitled to the protections of the Labor Law, but a triable issue of fact existed as to whether plaintiff was the sole proximate cause of his own accident (NYSCEF Doc. No. 75).
The July 23, 2018 decision was appealed to the First Department of the Appellate Division. The Appellate Division modified the decision of this court and held that "the ladder was an inadequate safety device for the work being performed" and CLDN and EGC's claim that "plaintiff was the sole proximate cause of his accident is unpersuasive, since plaintiff's stance was necessary to perform the work" (NYSCEF Doc. No. 86).
ECG now moves for summary judgment and to dismiss CLDN's claim for common-law indemnification on grounds that "plaintiff's accident was not attributable to ECG's negligent performance or nonperformance of an act solely within its province, nor did ECG breach a duty to CLDN" (NYSCEF Doc. No. 112). ECG also moves to dismiss CLDN's claim for contribution on the grounds that "ECG did not launch a force or instrument of harm, nor did [plaintiff] or CLDN detrimentally rely on ECG's continued performance, nor did any contract with ECG displace CLDN's duty to maintain the premises safely."
For the following reasons, ECG's motion is denied.
Discussion
To be entitled to the remedy of summary judgment, the moving party "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 from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]).
Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court's task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]).
Common Law Indemnification
Although Labor Law § 240 (1) holds owners and general contractors absolutely liable for any breach of the statute, even if "the job was performed by an independent contractor", it does not "obviate the right of an owner or general contractor, who is only vicariously liable by statute, to seek 'full indemnification from the party wholly responsible for the accident'" (McCarthy v Turner Const. Inc., 17 NY3d 369, 374 [2011]). "Consistent with the equitable underpinnings of common-law indemnification, our case law imposes indemnification obligations upon those actively at fault in bringing about the injury, and thus reflects an inherent fairness as to which party should be held liable for indemnity" (id. at 375).
ECG argues that it did not act negligently, did not supervise plaintiff's work, and did not owe a duty to CLDN and, as such, CLDN's claim for common law indemnification should be dismissed. ECG also notes that the Appellate Division ruled that "whether the ladder shook prior to the fall or during that period in time when he was attempting to recover his balance is of no moment" (NYSCEF Doc. No. 113).
However, the Appellate Division only determined that plaintiff was not the sole proximate cause of his own injury and that CLDN had violated Labor Law § 240(1). The First Department did not decide whether Mr. Escobar was the proximate cause - or even one of the proximate causes - of plaintiff's injury. The Appellate Division did not decide whether Mr. Escobar acted negligently, or whether his inattentiveness to the ladder contributed to the accident. Instead, the Appellate Division noted that Mr. Escobar, who had been holding the ladder, "walked away only minutes before the accident."
One of Mr. Escobar's responsibilities on the day of the accident was to hold the ladder when plaintiff was on it (NYSCEF Doc. No. 114, page 199 [Mr. Escobar's affidavit], and page 290 [plaintiff's deposition transcript]). Based on the video provided as exhibit "A" to CLDN's Affirmation in Opposition (NYSCEF Doc. No. 120), at the time of plaintiff's fall, Mr. Escobar was not holding the ladder but was, instead, looking at his phone. Although the Appellate Division held that plaintiff is not the sole proximate cause of his own injuries, there are triable issues of fact as to whether Mr. Escobar's actions were negligent and as to whether his action - or inaction - was a proximate cause of plaintiff's accident.
As stated above, liability imposed under Labor Law § 240 (1) does not prevent an owner or general contractor from seeking indemnification from a party responsible for the accident. Because a jury will have to decide whether Mr. Escobar's actions were responsible for plaintiff's accident, and because CLDN may seek indemnification against the party responsible for the accident, CLDN's claim for common law indemnification against ECG cannot be dismissed.
Contribution
"[I]t is settled that a party subjected to absolute vicarious liability pursuant to Labor Law § 240(1) may seek contribution from a party whose culpable conduct caused the injury" (Ciancio v Woodlawn Cemetery Assn., 249 AD2d 86, 671 NYS2d 466 [1st Dept 1998]). Because there is a triable issue of fact as to whether movant is responsible for plaintiff's injuries, CLDN's claim for contribution against movant cannot be dismissed.
Here, movant entered into a contract with the tenant of the building to perform services. ECG contends that there are only three situations in which a party who enters into a contract to perform services may be liable to a third person (here, CLDN, the owner). ECG argues that those situations are: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launches a force or instrument of harm' ...; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties ... and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (NYSCEF Doc. No. 113). ECG argues that it does not fit into one of the three prescribed scenarios and so CLDN's claim for contribution should be dismissed.
This court disagrees with ECG's contention that it does not fit into the second scenario. At the time plaintiff fell, Mr. Escobar was supposed to be holding the ladder (NYSCEF Doc. No. 114, page 312). Yet Mr. Escobar walked away and was looking at his phone. Because plaintiff fell off the ladder while Mr. Escobar abandoned his post, a reasonable jury could find that plaintiff relied on Mr. Escobar to his detriment. As such, there remains a triable issue of fact that could entitle CLDN to contribution.
Judicial Admission
ECG's claim that CLDN made a judicial admission in its argument before the Appellate Division is without merit.
"In order to constitute a judicial admission, the statement must be one of fact" (Naughton v City of New York, 94 AD3d 1, 12, 940 NYS2d 21 [1st Dept 2012].) "Legal arguments made by ... counsel in its motion papers do not constitute judicial admission." (Id.)
ECG indicates that "CLDN affirmatively argued to the First Department that 'Mr. Escobar did not cause Plaintiff's fall'" and cites to CLDN's Reply Affirmation dated May 17, 2019 (NYSCEF Doc. No. 114, page 179). This court finds that the statement made by CLDN in its reply papers is a legal argument to support its theory that plaintiff was the sole proximate cause his fall. It is not a statement of fact, and does not fit the criteria for a judicial admission.
A Person is not a Safety Device
A person is not a "safety device contemplated by Labor Law § 240(1) for the protection of workers" (McCarthy v Turner Construction Inc., 52 AD3d 333 [1st Dept 2008].) At oral argument, movant maintained that Mr. Escobar could not be considered a safety device and so claims against it must be dismissed. Mr. Escobar's presence, whether he is holding the ladder or not, does not spare CLDN from liability under the Labor Law because the ladder was an unsafe device. Simply put, ECG claims that Mr. Escobar's presence could not make the unsafe ladder suddenly safe for the purposes of the Labor Law. ECG misses the point; while Mr. Escobar's actions do not change CLDN's statutory liability, a jury could still find that Mr. Escobar was negligent.
Mr. Escobar's incapacity to function as a safety device only speaks to CLDN's statutory liability under the Labor Law, not to movant's involvement in or contribution to the accident. Although it is settled that CLDN violated the Labor Law, that finding does not obviate CLDN's right to seek common-law indemnification from the party with responsibility for the accident. Here, because common-law indemnification and contribution speak to negligence, and not to strict liability under the Labor Law, ECG's contention that the claims against it should be dismissed because Mr. Escobar is not a safety device under the Labor Law is unpersuasive. Accordingly, it is hereby
ORDERED that the motion by third-party defendant, ECG Retail Logistics, LLC., for summary judgment is denied. 2/14/2020
DATE
/s/ _________
ARLENE P. BLUTH, J.S.C.