Opinion
49702/01.
Decided August 31, 2005.
Weitz Kleinick Weitz, NY, NY, Def/Third Party Plaintiff, The Brooklyn Tabernacle, Steven R. Sundheim Associates, White Plains NY, Third Party Def/Calcedo Constr. Corp., Law Offices of Michael F.X. Manning, NY, NY, GCM/Third Party Defendant, Malapero and Prisco, NY, NY, Attorney for Plaintiff.
In this construction accident case, the Court has before it one motion and two cross-motions. Defendant/third-party plaintiff, The Brooklyn Tabernacle (hereinafter "BT"), moves for summary judgment, pursuant to CPLR 3212, to dismiss plaintiffs' complaint, or if denied to: preclude plaintiff Wilfredo Ordonez's lost wages claim on the grounds that he is an undocumented alien; and/or, to dismiss the action because BT's laborers, if the cause of Mr. Ordonez injuries, were "special employees" of Mr. Ordonez's employer, third-party defendant Calcedo Construction Corp. Further, if the Court denies summary judgment to BT, BT moves alternatively for summary judgment, pursuant to CPLR 3212, over and against third-party defendants Calcedo Construction Corp. (hereinafter "Calcedo") and GCM Metal Industries Inc. (hereinafter "GCM"), with full indemnification and defense costs from Calcedo and GCM to Tabernacle, for their failure to procure insurance in favor of BT and also for contractual indemnification.
Third-party defendant Calcedo cross-moves for summary judgment, pursuant to CPLR 3212, to dismiss plaintiffs' complaint, or if denied precluding plaintiff Wilfredo Ordonez's lost wages claim on the grounds that he is an undocumented alien. In the alternative, Calcedo, cross-moves for summary judgment, pursuant to CPLR 3212, over and against third-party defendant GCM, with indemnification and defense costs from GCM to Calcedo.
Third, plaintiffs cross-move for leave, pursuant to CPLR 3025, to: amend the caption by adding third-party defendant GCM as a direct defendant; and, serve a supplemental summons and verified complaint upon GCM.
For the reasons to follow, BT's summary judgment motion and Calcedo's cross-motion for summary judgment are denied. Plaintiffs' cross-motion to add GCM as a direct defendant and serve a supplemental summons and complaint upon GCM is granted.
Background
Plaintiff Wilfredo Ordonez, a construction worker, alleges that on October 22, 2001, while employed by Calcedo in the renovation of the premises owned by BT, in downtown Brooklyn (the site of the former Loew's Metropolitan Theater, at 17-21 Smith Street, a/k/a 392 Fulton Street), he was struck by improperly secured bricks and/or mortar from above. He suffered, among other things, a fracture of his left radius, requiring an open reduction and internal fixation with a dynamic compression plate, secured by three screws in his left radius, and subsequent loss of earnings [verified complaint — exhibit A of BT's motion and exhibit A of plaintiffs' cross-motion; verified bill of particulars — exhibit C of plaintiffs' cross-motion].
Plaintiff Rosa Ordonez, wife of Wilfredo Ordonez, claims a derivative action. Plaintiffs' verified complaint alleges negligence by BT and BT's violations of Labor Law 200, 240 (1), and 241 (6). With respect to the Labor Law 241 (6) claim, plaintiffs allege that BT failed to provide proper protection for plaintiff Wilfredo Ordonez from overhead hazards in contravention of the Industrial Code of the New York State Department of Labor, 12 NYCRR 23-1.7 (a) (1) and (2).
According to the deposition of Daniel Newcomb, Calcedo's construction manager/site BT and Calcedo, to prevail in their motion and cross-motion for summary judgment to dismiss plaintiffs' claims must make a prima facie showing that there are no triable issues of fact with respect to plaintiffs' negligence claims and violations of Labor Law sections cited in the verified complaint. supervisor, there were more than 75 workers from at least 12 different employers at the BT work site on the date of the accident [exhibit H of plaintiffs' cross-motion, pp. 7-8]. At the time of the accident, plaintiff was standing on the ground floor, passing pieces of scaffolding up to a co-worker, Michael Marano, who was standing on the second floor [exhibit D of BT's motion — EBT of Wilfredo Ordonez, p. 31; exhibit B of Calcedo's cross-motion — affidavit of Michael Marano; and exhibit H of plaintiffs' cross-motion, pp. 28-30], when plaintiff was struck in the arm by a red brick. Plaintiff believes that the brick fell from the fifth floor [exhibit D of BT's motion, pp. 25-27]. Plaintiff testified in his EBT that prior to the accident Calcedo had performed demolition work on the fifth floor, leaving "a lot of debris and stuff [exhibit D of BT's motion, p. 27, lines 6-7]." Also, a few days before the accident, plaintiff had been to the fifth floor and "we were bringing down bricks from something that had been demolished on the fifth floor [exhibit D of BT's motion, p. 28, lines 10-12]." Plaintiff testified that he never saw the brick that struck him until after the accident because he was focusing on his work and not looking above [exhibit D of BT's motion, p. 26].
Mr. Newcomb testified that he was aware of plaintiff's October 22, 2001-accident in the shaft of staircase 4 [exhibit H of plaintiffs' cross-motion, pp. 20-21]. Further, Calcedo's October 22, 2001-"daily report" [exhibit I of CGM's affirmation in opposition] shows that GCM was working in staircase number 4 on an "infill pocket." This work involves either placing a beam in the masonry or sealing a pocket so as not to leave a void in a wall [exhibit H of plaintiffs' cross-motion, pp. 23-24]. Mr. Newcomb testified, at p. 14, lines 9-11, with respect to the October 22, 2001 "daily report" that BT workers "were chopping channels at Stair Number 4, infilling pockets, masonry infill to a pocket." Mr. Newcomb further testified that Mr. Marano told him that "GCM was trying to move some bricks out of a beam pocket so that they could install a beam and somehow the brick got loose and fell down the shaft" [exhibit H of plaintiffs' cross-motion, p. 29, lines 15-18].
Mr. Marano, in his affidavit [exhibit B of Calcedo's cross-motion], states that after he reported the accident to his supervisor, he then proceeded upstairs approximately five or six minutes after the accident, to see what caused the brick to fall and found a GCM worker "on a scaffold using a pry bar to pry out bricks from a 'pocket' in the wall directly adjacent to the shaft where the brick came down." He states that he knew that the worker was a GCM employee, and that he told the GCM worker and foreman that "bricks were falling down the shaft." Further, he states that when he arrived upstairs that he saw no other workers or tradesmen in the "immediate vicinity of the 'pocket' at the shaft" and "I have no doubt that the brick that struck Wilfredo Ordonez was pried out of the wall by the GCM worker I previously described."
GCM, in exhibit H of its affirmation in opposition, presents only selected pages from the EBT of Jose Paramo, one of its workers at the construction site at the time of the accident. The Court is left to wonder if there is testimony by Mr. Paramo that CGM didn't want the Court to read. Mr. Paramo, at p. 27 of his EBT, testifies that he never chipped bricks out of a wall at the construction site and only saw Calcedo workers chipping bricks. However, at p. 28, he contradicts himself and testifies that he never saw Calcedo workers chipping bricks out of wall pockets. Based only upon these snippets from Mr. Paramo's EBT and not presenting any other evidence, CGM's counsel boldly asserts in paragraph 16 of his affirmation in opposition, "CGM never engaged in chipping any bricks out of a wall. Exhibit 'H', page 27. Chipping bricks out of a wall was the responsibility of the CALCEDO CONSTRUCTION workers who were supervising the BROOKLYN TABERNACLE workers. Exhibit 'H', page 27."
Exhibit G of plaintiffs' cross-motion is the expert affidavit of Kathleen Hopkins, a licensed Certified Site Safety Manager and OSHA Construction Safety Instructor. She notes that the Mr. Ordonez was permitted to work in an area with no overhead protection, in violation of Part 23 of the New York Industrial Code and federal OSHA regulations. She states in paragraphs 10 and 11 of her affidavit that:
10. It is entirely foreseeable that in failing to provide adequate overhead protection and/or failing to barricade off the hazardous area and/or failing to erect toeboards would subject the workers below to harm.
11. In my professional opinion, had Mr. Ordonez been provided with the appropriate overhead safety devices, he could have performed his duties without the danger of being struck by falling objects.
In March 1999 BT and Calcedo entered into an agreement whereby Calcedo agreed to act as BT's Construction Manager for the renovation work at BT's location [exhibit E of BT's motion]. The agreement, in its exhibit B, "Insurance Requirements," mandated that:
Prior to commencement of any of the Work Construction Manager [Calcedo] shall purchase and maintain the following insurances as will protect it and Owner [BT] from the claims set forth below which may arise out of or as a result of Construction Manger's operations under the Contract whether such operation be by the Construction Manager itself, or any Subcontractor or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable.
"Commercial general liability" was one of the types of insurance required. Further, Article 10.13.1 of the contract, "Construction Manager's Indemnity," states that the "Construction Manager shall indemnify and hold the owner and its employees harmless from all claims to the extent caused by the negligent acts or omissions of the Construction Manager." BT's counsel, in paragraph 27 of his affirmation in support of the motion, claims that "to date, CALCEDO has failed to provide insurance coverage to TABERNACLE, and therefore is in breach of contract for failure to procure insurance." Calcedo, in exhibit C of its cross-motion, provided a copy of its certificate of insurance naming BT as an additional insured for the period during which the accident took place.
Calcedo, in Article 2.3.30 of its contract with BT, was obligated to provide safe working environment for its employees for "the purpose of protecting persons from injury." Further, Calcedo was obligated to consult with contractors to "minimize risk of injury to persons . . . and the coordination . . . and maintenance at or about the Project of danger signs and warnings against hazards and . . . the inspection of applicable materials and equipment so as to ascertain and evaluate hazards and unsafe conditions. Calcedo, in Article 2.3.31, was required to have contractors "correct unsafe conditions and . . . recommend corrective action where any Contractor violates safety standards."
In October 1999 BT and GCM entered into a contract whereby GCM agreed to perform certain work at BT's location [exhibit F of BT's motion]. In Article 10.14.9 of the agreement, "Accident Prevention," it states "prevention of accidents at the site is the responsibility of the Trade Contractor [GCM], its employees, subcontractors and suppliers, and all other trade contractors, persons and entities at the site." GCM, pursuant to Article 10.14.1 of the contract, "Safety, "was required "to perform the Trade Contract Work in a safe manner," and in Article 10.14.3, "Safety Responsibility," "the Trade Contractor shall have full responsibility for implementing appropriate safety measures pertaining to the Trade Contract Work . . ." Article 12.1 of the contract required GCM to procure various forms of insurance, prior to the commencement of work, including "commercial general liability insurance on an occurrence basis," with, pursuant to Article 12.2 of the contract, BT and Calcedo among the "additional insured." Article 13.1 "Indemnification," states:
The Trade Contractor shall indemnify and hold the Owner, Construction Manager . . . harmless from all claims that may arise from the performance of the Trade Contract Work, from the extent caused by the negligent acts or omissions of the Trade Contractor, its subcontractors or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them are liable.
Further, BT's counsel in paragraph 34 of his affirmation in support of the motion claims that "to date, GCM, has failed to provide insurance coverage to TABERNACLE, and therefore is in breach of contract for failure to procure insurance." GCM, in exhibit F of its affirmation in opposition, provided a copy of its certificate of insurance naming BT as an additional insured for the period during which the accident took place.
Summary Judgment Standard
The 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 eliminate any material issues of fact from the case. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v. Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).
CPLR 3212 (b) requires that for a court to grant summary judgment the court must
determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v. Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor ofhe movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979). BT and Calcedo, to prevail in their motion and cross-motion for summary judgment to dismiss plaintiffs' claims must make a prima facie showing that there are no triable issues of fact with respect to plaintiffs' negligence claims and violations of Labor Law sections cited in the verified complaint.
BT's and Calcedo's summary judgment motions and Labor Law 240 (1)
Labor Law 240 (1), the "scaffold law" states:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, 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. [ Emphasis added]
The deposition testimony of Mr. Ordonez and Mr. Newcomb, and the affidavit of Mr.
Marano demonstrates that Mr. Ordonez was employed by Calcedo in performing repairs and alterations upon BT's property. There is the unrefuted affidavit of Mr. Marano that he found only GCM workers at the top of the shaft in which Mr. Ordonez was struck below by a brick, working on a "pocket," about five or six minutes after the accident. The falling of a brick is gravity related. There is a triable issue of fact as to whether the brick that hit Mr. Ordonez was properly secured so as to prevent injury to construction workers below. Mr. Ordonez's accident is one that the Legislature clearly intended to come under the protection of the Labor Law 240 (1).
The Court of Appeals observed in Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 284-285 (2003) that:
[t]he first scaffold law, an ancestor of our Labor Law 240 (1), was enacted . . . in response to the Legislature's concern over unsafe conditions that beset employees who worked at heights ( see L. 1885, ch. 314) In promulgating the statute, the lawmakers reacted to widespread accounts of deaths and injuries in the construction trades . . . Most tellingly, the lawmakers fashioned the pioneer legislation to "give proper protection" to the worker. These words are at the heart of the statute and have endured through every amendment.
Further, at 286, the Court instructed that, "[t]he Legislature looked to employers (and later, contractors and owners) as the entities best able to control the workplace and provide for its safety, casting them in liability for their failure to obey the law. The objective was — and still is — to force owners and contractors to provide a safe workplace, under pain of damages."
In Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 (1991) the Court held that "[it] is settled that section 240 (1) 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed'. (See Quigley v. Thatcher, 207 NY 66, 68).' ( Koenig v. Patrick Constr. Corp., 298 NY 313, 319)." The Rocovich Court, at 513, looked at the " the nature of those occupational hazards which the Legislature intended should warrant the absolute protection that the statute affords." Further, at 514, the Court finds that "[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for . . ." and including, as in the instant case "a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." [ Emphasis added]
In a subsequent case, Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993), the Court held, at 501, that "Labor Law 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." The Court instructed, in Narducci v. Manhasset Bay Asssociates, 96 NY2d 259, 268 (2001), that for Labor Law 240 (1) "to apply, a plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute ( see, e.g., Pope v. Supreme-K.R.W. Constr. Corp., 261 AD2d 523; Baker v. Barron's Educ. Serv. Corp., 248 AD2d 655)." In Misseritti v. Mark IV Constr. Co. Inc., 86 NY2d 487, 491 (1995), the Court instructed that, "in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites that section 240 (1) prescribes safety precautions for workers laboring under unique gravity-related hazards ( see Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, at 501 . . .)."
Mr. Ordonez's accident is similar to that of plaintiff in Orner v. Port Authority of New York and New Jersey, 293 AD2d 517 (2d Dept 2002). In Orner, an electrician working on the ground floor of a construction project was hit on the head by unsecured roofing material that fell from the roof. Supreme Court, Queens County dismissed the Labor Law 240 (1) claim. The Appellate Division, Second Department, reversed, holding, at 517-518, that, "Labor Law 240 (1) evinces a clear legislative intent to provide exceptional protection for workers against the special hazards that arise when the work site either is itself elevated or is positioned below the level where materials or loads are hoisted or secured." There is an issue of triable fact as to whether the brick which fell on Mr. Ordonez was properly secured and if Mr. Ordonez was properly protected against this "special hazard." See Beauchesne v. The City of New York, 261 AD2d 145 (1st Dept 1999); Rosa v. R.H. Macy Co., Inc., 272 AD2d 87 (1st Dept 2000); Daquaro v. Modern Continental Construction Co., Inc., 8 AD3d 324 (2d Dept 2004).
BT's and Calcedo's summary judgment motion and Labor Law 241 (6)
Labor Law 241 (6) imposes upon owners, contractors, and their agents a non-delegable duty to provide reasonable and adequate protection and safety to persons employed in construction or demolition. Russin v. Louis N. Picciano Son, 54 NY2d 311, 317-318 (1981); Comes v. New York State Elec. and Gas Corp., 82 NY2d 876, 878 (1993); Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 348 (1998). Labor Law 241 provides, in relevant part:
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, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. 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 therewith. [ Emphasis added]
The rules referred to above, which apply to the instant case, are found in the New York State Department of Labor's Industrial Code, 22 NYCRR 23-1.7 (a) (1) and (2), which state:
Section 23-1.7 Protection from general hazards. (a) Overhead hazards. (1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot. (2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas.
The Industrial Board of Appeals (formerly the Board of Standards and Appeals) is the agency entrusted with issuing rules and regulations to carry into effect the provisions of Labor Law 241, provided that the rules are not in conflict with the statute. Thus, the Board's definitions, in 12 NYCRR 23-1.4, may be relied upon concerning the duty of owners, contractors, and agents to furnish a safe construction workplace. DaBolt v. Bethlehem Steel Corp., 92 AD2d 70 (4th Dept 1983), lv. dismissed 60 NY2d 554 (1983). The Board's definition of construction work, 22 NYCRR § 23-1.4 [b] [13], states in relevant part that construction work includes "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures [emphasis added]." In Joblon v. Solow, 91 NY 457, 466 (1998), the Court noted that the Board's definitions are broad and "we look to the regulations contained in the Industrial Code 12 NYCRR 23-14 [b] [13] to define what constitutes construction work within the meaning of the statute." The work being performed by Mr. Ordonez was part of the ongoing renovation of BT's premises. Plaintiff's work clearly falls within the scope of protection afforded to workers under Labor Law 241 (6) and the relevant Industrial Code definitions.
Two Appellate Division, Second Department, decisions are similar to the instant case and both decisions denied dismissal of Labor Law § 241 (6) claims. Belcastro v. Hewlett-Woodmere Union Free School Dist. Number 14, 286 AD2d 744 (2d Dept 2001); Zervos v. City of New York, 8 AD3d 477 (2nd Dept 2004). In Belcastro, plaintiff was injured, while working at ground level, when struck by a piece of wood allegedly fell or thrown from the roof of a library at which he was working. The Court agreed with plaintiff that 12 NYCRR 23-1.7 (a) (1) applied, holding, at 746, that "while the violations of an Industrial Code provision 'constitute[s] some evidence of negligence,' it is for a jury to determine 'whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances' (Rizzuto v. Wenger Contr. Co., 91 NY2d 343, 351)." In Zervos, plaintiff was performing window renovations at a public school which was surrounded by scaffolding. While working with his head down, plaintiff was allegedly struck by a piece of a brick falling through the narrow space between the building and the scaffolding. About one-half hour prior to the accident, small pieces of brick and cement fell down in the same location, without hitting anyone. Plaintiff then complained to a co-worker, who yelled up to workers on the roof not to drop debris. Further, a co-worker stated in an affidavit that workers on the roof were using a rope and a five-gallon bucket to hoist bricks to the roof and, at 480, "at least one brick fell as the bucket was being hoisted. The affidavit was sufficient to raise a triable issue of fact as to whether the safety devises used to hoist materials at the job site were adequate."
In the instant case, Mr. Ordonez's location at the time of accident was directly beneath GCM workers who were working on an "infill pocket," a wall alteration to install a beam or seal a void. If the bricks used for the "infill pocket" were not properly secured, they could fall. Thus, there is a triable issue of fact for a jury to determine if the Industrial Code provisions pursuant to Labor Law 241 (6) were followed.
BT's and Calcedo's summary judgment motion and Labor Law 200 Labor Law 200 codifies the "common law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work." Comes v. New York State Elec. and Gas Corp., supra, at 877. In Russin v. Picciano, supra at 317, the Court of Appeals instructed that the party charged with the duty to provide a safe construction site has "the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." Thus to find an owner or general contractor liable for the actions of a subcontractor, under Labor Law 200, there must be an exercise of supervisory authority or control by the owner or general contractor. See Lombardi v. Stout, 80 NY2d 290 (1992); Ross v. Curtis-Palmer Hydro-Electric Co., supra. The Appellate Division, Second Department, in Linares v. United Management Corp., 16 AD3d 382, 384 (2005), observed that "[t]he statute applies, inter alia, to owners and contractors who either created a dangerous condition or had actual or constructive notice of it ( see e.g. Gonzalez v. City of New York, 304 AD2d 709, 710-711)." See Shipkoski v. Watch Case Factory Assoc., 292 AD2d 589 (2d Dept 2002); Alvarez v. Long Island Fireproof Door Co., Inc., 305 AD2d 343 (2d Dept 2003); Ford v. Luigi Caliendo Sons, Inc., 305 AD2d 368 (2d Dept 2003); Oganessian v. Eternal Memorials, Inc., 305 AD2d 387 (2d Dept 2003); Abayev v. Jaypson Jewelry Mfg. Corp., 2 AD3d 548 (2d Dept 2003).
In the instant case, in the agreement between BT and Calcedo [exhibit E of motion], it states in section 1.1.5 that "[t]he Construction Manager shall be the Owner's agent and shall exercise its skill and judgment in furnishing construction, administrative and management services . . ." Further, section 2.3.7 states "[t]he Construction Manager shall coordinate the work of the Contractors and shall endeavor to obtain satisfactory performance from each of the Contractors." As previously cited, the agreement in sections 2.3.30 and 2.3.31 charged Calcedo with making sure that each contractor maintains a safety program and empowered Calcedo to require contractors to correct unsafe conditions. Therefore, there are triable issues of fact with respect to whether or not BT and Calcedo exercised the requisite supervision or control of the project and had actual or constructive notice of improperly secured bricks which caused plaintiff's accident, and thus BT and Calcedo may be liable under Labor Law 200 and common-law negligence. Kerins v. Vassar College, 15 AD3d 623 (2d Dept 2005); Galassa v. Lizda Realty, Ltd., 18 AD3d 809 (2d Dept 2005).
Plaintiff's lost wages claim and immigration status BT's motion and Calcedo's cross-motion seek to prevent Mr. Ordonez from recovering on his lost wages' claim with allegations that Mr. Ordonez is an undocumented alien, and thus precluded from receiving lost wages he is not entitled to earn, pursuant to Hoffman Plastics Compounds, Inc. v. N.L.R.B., 535 US 137 (2002). In his deposition [exhibit G of BT's motion], Mr. Ordonez, on p. 27, admitted that he is not a US citizen, and answered that he didn't have a green card. However, on pp. 30-31 he testified that he had a work permit from Immigration and possessed the original and copies.
Hoffman precludes undocumented aliens from receiving back pay for work not performed because of their violation of the Immigration Reform and Control Act [IRCA] of 1986. The Court, in Hoffman, reversed the National Labor Relations Board [NLRB], which had awarded back pay to illegal aliens who were terminated for union organizing. Chief Justice Rehnquist, writing for the 5-4 Hoffman majority, held, at 1284, that the NLRB's award of back pay "in a case like this not only trivializes the immigration laws, it also condones and encourages future violations."
Federal immigration laws do not apply under New York law when no federal statute or any provision of the US Constitution has been implicated. Madeira v. Affordable Housing Foundation, Inc., 315 F Supp 405 (SDNY 2004); Echeverria v. Estate of Lindner, 7 Misc 3d 1019 (a); 2005 NY Slip Op 50675 (U) (Sup Ct, Nassau County 2005); Llerena v. 302 West 12th Street Condominium, 5 Misc 3d 1022 (A); 2004 NY Slip Op 51510 (U) (Sup Ct, New York County 2004); Celi v. 42nd Street Redevelopment Project, Inc., 5 Misc 3d 1023 (A), 2004 NY Slip Op 51520 (U) (Sup Ct, Kings County 2004); Cano v. Mallory Management, 195 Misc 2d 666 (Sup Ct, Richmond County 2003).
Subsequent to Hoffman, the New York Attorney General issued a formal opinion, 2003 NY Ops Atty Gen No. F-3, that Hoffman, at 1, "does not preclude the New York State Department of Labor from enforcing State wage payment laws on behalf of undocumented workers." The opinion found Hoffman limited in its holding and, at 4, concludes that "[n]othing in Hoffman suggests that IRCA mandates that undocumented workers forfeit payments for work that they have already performed or that, by hiring undocumented workers, employers may evade their legal obligation to make wage payments for work that has actually been performed."
Mr. Ordonez's immigration status is not a bar to his potential recovery for lost wages in a New York court for a tort action brought under New York common law and Labor Law. The Madeira Court held, at 507, that "plaintiff's alien status is relevant to determining whether lost earnings are appropriate and, if so, how much should be awarded." Further, as articulated in Echeverria, at 12, "this court believes it is completely appropriate to consider a claimant's immigration status in determining future loss of wages." That portion of BT's motion and Calcedo's cross-motion seeking to preclude plaintiff's recovery for lost wages because of his immigration status is denied. However, Mr. Ordonez's immigration status may be considered by the jury in evaluating his lost wages claim.
Assuming that Mr. Ordonez was undocumented when hired by Calcedo, either Calcedo intentionally hired him in contravention of IRCA or Mr. Ordonez submitted to Calcedo fraudulent documents. The Hoffman Court observed, at 148, that "[u]nder the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies." If Calcedo knowingly hired an undocumented alien, this Court finds it disingenuous that Calcedo was willing to accept the sweat of Mr. Ordonez in pursuit of profit, but when Mr. Ordonez became injured, possibly by Calcedo's own negligence, Calcedo should be absolved from paying Mr. Ordonez for his lost wages.
Calcedo's argument is the legal equivalent of the shameless conduct exhibited by Claude Raines' character, Captain Renault, the Vichy policy prefect, in the classic scene from the film "Casablanca," when Major Strasser of the Gestapo (Conrad Veidt) orders Captain Renault to close Rick's Café Americain (the night club owned by Rick Blaine — the Humphrey Bogart character). In the screenplay [from www.imdb.com, "Memorable quotes from Casablanca (1942)"] the following exchange takes place:
Rick: How can you close me up?
Captain Renault: I'm shocked, shocked to find that gambling is going on here!
[ a croupier hands Renault a pile of money]
Croupier: Your winnings, sir.
Captain Renault: [ sotto voce] Oh, thank you very much.
[ aloud]
Captain Renault: Everybody out at once!
BT laborers are not, as a matter of law, "special employees" of Calcedo
BT, in its summary judgment motion, raised an additional issue, claiming that plaintiffs' action must be dismissed because if Mr. Ordonez was injured due to the negligence of BT's laborers, he was injured by his employer's own "special employees." The Court of Appeals, in Thompson v. Grumman Aerospace Corp., 78 NY2d 553 (1991), instructed, at 557, that:
a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits (Stone v. Bigley Bros., 309 NY 132; Irwin v. Klein, 271 NY 477; Murray v. Union Ry. Co., 229 NY 110, 112-113; Matter of Schweitzer v. Thompson Norris Co., 229 NY 97, 99; see also, Cameli v. Pace Univ., 131 AD2d 419, 420). A special employee is described as one who is transferred for a limited time of whatever duration to the service of another (Brooks v. Chemical Leaman Tank Lines, 71 AD2d 405, 407).
The Court, in Wawrzonek v. Central Hudson Gas and Electric Corporation, 276 NY 412, 419 (1938), held that "[i]n the absence of proof that the general employer has surrendered control completely, it must be presumed that his control continued." The Thompson Court made it clear, at 557, that "[g]eneral employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer . . ." and that "a person's categorization as a special employee is usually a question of fact . . ." The Court, at 557-558, held that "the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact . . ." In Gonzalez v. John B. Lovett Assoc., Ltd., 228 AD2d 342, 343 (1st Dept 1996), the Court held, in applying Thompson, that in determining "special employee" status if "particular, undisputed critical facts present no triable issue of fact, a determination as to such employment status may be made as a matter of law." In Sanfilippo v. City of New York, 239 AD2d 296 (1st Dept 1997), the court in citing both Thompson and Wawrzonek, held that "A finding of special employment is justified only where the special employer exerts complete and exclusive control over the purported special employee, as to whom the general employer has relinquished all control."
Thus, to make a determination, as a matter of law, that BT's laborers were Calcedo's "special employees" the burden is on BT to establish that BT surrendered control of its laborers to Calcedo and that Calcedo had exclusive control over BT's laborers. In support of this, BT presents just a few selected pages of the deposition testimony of Brian Pettrey [the full transcript is found in exhibit C of CGM's affirmation in opposition to Calcedo's cross-motion], BT's representative at the site renovation. BT claims in its reply affirmation, at paragraphs 9 and 11, that Mr. Pettrey's testimony at pp. 16, 17, 34 and 35 proves that BT's workers were in the "temporary employ of CALCEDO" and that BT surrendered "all direction and control of the Tabernacle laborers to CALCEDO and that CALCEDO assumed the exclusive control and direction of manner, detail, and ultimate result of the Tabernacle's laborers work while on the construction site." The only other proof presented by BT that BT workers were "special employees" is the claim that Daniel Newcomb, Calcedo's Construction Manager, testified in his EBT [exhibit H of plaintiffs' cross-motion, p. 16, lines 23-25] that Calcedo gave direction to BT's workers.
An actual examination of Mr. Pettrey's EBT testimony, cited above by BT's counsel, shows Mr. Pettrey's employment background (pp. 16-17) and the existence of both Calcedo and BT laborers working at the premises (pp. 34-35). A further reading of Mr. Newcomb's transcript, at pp. 17-18, shows that the Calcedo supervisors, in performing their function as construction managers, gave directions to Ladys Magna, BT's foreperson, to have various areas of the site cleaned by BT laborers. As BT laborers received their instruction from other BT employees, it cannot be said that Calcedo exercised exclusive control over BT laborers. Most telling of all, Mr. Pettrey, BT's representative, testified in his EBT, at p. 43, lines 4-12, that he personally gave orders and directions to Calcedo employees, including Mr. Newcomb and other Calcedo supervisors, at the site. It is clear that BT has failed, as a matter of law, to establish that BT's laborers were "special employees" of Calcedo.
Indemnification Claims are premature
The branches of BT's motion for full indemnification and defense costs against Calcedo and GCM, and Calcedo's cross-motion for indemnification and defense costs against GCM are not ripe. There are triable issues of fact as to the liability of all the parties. It is premature to determine claims for either common-law or contractual indemnification prior to the determination of the respective fault of the parties for underlying injury.
A party seeking common-law indemnification must show it was not negligent and that the party from whom indemnification is sought is responsible for the occurrence due to an obligation imposed by law. McDermott v. City of New York, 50 NY2d 211 (1980). In Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 NY 461, 468 (1892) the Court instructed that "[t]he right to indemnity stands upon the principle that everyone is responsible for the consequences of his own negligence, and, if another person has been compelled (by the judgment of a court having jurisdiction) to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him." See Raquet v. Braun, 90 NY2d 177 (1997). A party seeking contractual indemnification "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 Management, Inc., 259 AD 60, 65 (1st Dept 1999).
The Appellate Division, Second Department, in Maxwell v. Toys "R" Us, 258 AD2d 630 (1999), reversed the granting of summary judgment on a cross claim for contractual indemnification, holding that since "no finding has yet been made with respect to the parties' respective fault, if any, for the underlying injury and, therefore, any award of summary judgment at this juncture would be premature ( see Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 NY2d 786, 795 . . .)." Any potential liability of the party seeking contractual indemnification is sufficient to defeat a motion for summary judgement. Belcastro v. Hewlett Woodmere Union Free School District Number 14, supra.; Delmar v. TerraStruct Corp., 249 AD2d 259 (2d Dept 1998); Chun v. Ecco III Enterprises, Inc., 268 AD2d 454 (2d Dept 2000); Springstead v. Ciba Geigy Corporation, 302 AD2d 589 (2d Dept 2003); Brennan v. R.C. Dolner, Inc., 14 AD3d 639 (2d Dept 2005).
In the instant case there are genuine triable issues for a jury with respect to the amount of supervision and control of the project by BT and Calcedo, and if GCM properly secured the brick that fell upon Mr. Ordonez. Any claims for indemnification must await any findings of possible liability. Barnes v. DeFore/Halmer, 271 AD2d 387 (2d Dept 2000).
Amending the caption to add GCM as a direct defendant
This action was commenced with service against BT on or about December 20, 2001 [exhibit A of BT's motion]. On or about April 23, 2002, BT commenced an impleader action against Calcedo and CGM [exhibit C of BT's motion]. The impleader action and subsequent joinder of issue with respect to Calcedo and CGM were completed well before plaintiffs' three year statute of limitations passed. To add CGM as a direct defendant derives from CPLR 3025 (b), which states:
(b) Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just
including the granting of costs and continuances. [ Emphasis added] Amending the complaint, to add GCM as a direct defendant and a cause of action on behalf of plaintiffs, will not cause prejudice GCM or BT, the other direct defendant. Given an absence of prejudice or surprise to an opposing party, a motion to amend the complaint may be granted at any time, even post-verdict. Rosenthal v. Allstate Ins. Co., 248 AD2d 455 (2d Dept 1998); Nassi v. Joseph DiLemme Const. Corp., 250 AD2d 658 (2d Dept 1998); Paolano v. Southside Hosp., 3 AD3d 524 (2d Dept 2004). To establish actual prejudice, there must be an indication that the defendant has been hindered in his case preparation or prevented from doing something in support of his case. Loomis v. Civetta Corinno Constr. Corp., 54 NY2d 18 (1991). As the Court articulated in Dolan v. Garden City Union Free School Dist., 113 AD2d 781, 786 (2d Dept 1985), "[e]ach case must be examined sui generis, and the degree of prejudice demonstrated must be weighed against the merits of plaintiff's claim of entitlement to the amendment and the sufficiency of the excuse proffered for the delay." In the instant case, third-party defendant CGM has been served with the third-party complaint and all prior pleadings, pursuant to CPLR 1007. Therefore, CGM had actual notice of plaintiffs' potential direct claim and cannot be prejudiced as a result of the granting of the cross-motion to amend the caption and add CGM as a direct defendant.
Further, despite the fact that the three-year statute of limitations has expired against proposed direct defendant CGM, a direct claim asserted against a third-party defendant relates back to the date of service of the third-party complaint for statute of limitations purposes. Duffy v. Horton Memorial Hosp., 66 NY2d 473 (1985); Schuler v. Grand Metro Bldg. Corp., 118 AD2d 633 (2d Dept 1986). The third-party complaint served upon GCM was interposed in a timely fashion. It stated with specificity the date and location of the alleged injury, the alleged cause of plaintiff's injury, and the alleged specific acts of negligence by GCM's employees, which caused and/or contributed to Wilfredo Ordonez's injuries, in paragraphs 22 and 23 of the third-party complaint. This clear and unequivocal language placed CGM on actual notice of its potential liability to plaintiffs. Further, there is no surprise or prejudice to GCM as GCM has been an active participant at each EBT and court conference, and GCM has received all discovery exchanged to date.
Therefore, plaintiffs will be granted leave to amend the pleadings and caption, with GCM as a direct defendant and GCM will accept service of the amended pleadings in the form attached to plaintiffs' cross motion as exhibit E.
Conclusion
Defendant/third-party plaintiff The Brooklyn Tabernacle's motion for summary judgment, pursuant to CPLR 3212, to dismiss plaintiffs' complaint, or to preclude plaintiff Wilfredo Ordonez's lost wages claim on the grounds that he is an undocumented alien is denied. There are triable issues of fact.
Defendant/third-party plaintiff The Brooklyn Tabernacle's motion for summary judgment, pursuant to CPLR 3212, to dismiss plaintiffs' complaint, because The Brooklyn Tabernacle laborers, if the cause of Mr. Ordonez injuries, were "special employees" of Mr. Ordonez's employer, third-party defendant Calcedo Construction Corp., is denied. The Brooklyn Tabernacle laborers, as a matter of law, were not "special employees" of third-party defendant Calcedo Construction Corp.
Defendant/third party-plaintiff The Brooklyn Tabernacles's alternate motion for summary judgment, pursuant to CPLR 3212, over and against third-party defendants Calcedo Construction Corp. and GCM Metal Industries Inc., with full indemnification and defense costs from Calcedo Construction Corp. and GCM Metal Industries, Inc. to The Brooklyn Tabernacle, for their failure to procure insurance in favor of BT and contractual indemnification, is denied. The issue is premature. There has been no determination of the respective fault of the various parties.
Third-party defendant Calcedo Construction Corp.'s cross-motion for summary judgment, pursuant to CPLR 3212, to dismiss plaintiffs' complaint, or to preclude plaintiff Wilfredo Ordonez's lost wages claim on the grounds that he is an undocumented alien is denied. There are triable issues of fact.
Third-party defendant Calcedo Construction Corp.'s cross-motion for summary judgment, pursuant to CPLR 3212, over and against third-party defendant GCM Metal Industries, Inc., awarding indemnification and defense costs from GCM Metal Industries Inc. to Calcedo Construction Corp. is denied. The issue is premature. There has been no determination of the respective fault of the various parties.
The cross-motion of plaintiffs Wilfredo Ordonez and Rosa Ordonez for leave, pursuant to CPLR 3025, to amend the caption by adding third-party defendant GCM Metal Industries, Inc. as a direct defendant and serve a supplemental summons and verified complaint upon GCM Metal Industries, Inc. is granted. Plaintiffs shall serve the supplemental summons and verified complaint upon defendant GCM Metal Industries, Inc. within twenty days after the notice of entry of this decision and order.
This constitutes the decision and order of the court.