Opinion
No. 9600/06.
2012-05-31
John O'ROURKE and Michelle O'Rourke, Plaintiffs, v. The CITY OF NEW YORK, Five Star Electric Corp., Hazen & Sawyer P.C ., Malcolm Pirnie, Inc., and Hazen & Sawyer P.C./Malcolm Pirnie, Inc., a Joint Venture, Defendants.
Charles J. Nolet, Esq., Brecher Fishman Pasternack Walsh Tilker & Zeigler PC, Garden City, for Plaintiffs. Edward Hayum and David Shimkin, Esqs., Cozen O'Connor, New York City, for Defendant, the City of New York.
Charles J. Nolet, Esq., Brecher Fishman Pasternack Walsh Tilker & Zeigler PC, Garden City, for Plaintiffs. Edward Hayum and David Shimkin, Esqs., Cozen O'Connor, New York City, for Defendant, the City of New York.
Denis Farrell, Esq., Traub Lieberman Strauss & Shrewsberry LLP, Hawthorne, for Defendant, Five Star Electrical Corp.
Gail J. McNally, Esq., Lawrence Worden Rainis & Bard, PC, Melville, for Defendants, Hazen Sawyer PC and Malcolm Pirnie, Inc.
Construction Co. Inc., Peter Riggs, Esq., Cerussi & Spring, White Plains, for Second Third–Party Defendants, A.J. Pegno Construction Corp. and Tully.
SYLVIA G. ASH, J.
The following papers numbered 1 to 26 read herein:
+------------------------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +--------------+---------------------------------------------------------------------¦ ¦Notice of ¦ ¦ ¦Motion/Order ¦ ¦ ¦to Show Cause/¦ ¦ ¦Petition/Cross¦1–2; 3–5; 6–7; 8–9 ¦ ¦Motion and ¦ ¦ ¦Affidavits ¦ ¦ ¦(Affirmations)¦ ¦ ¦Annexed ¦ ¦ +--------------+---------------------------------------------------------------------¦ ¦Opposing and ¦ ¦ ¦Reply ¦ ¦ ¦Affidavits ¦10–11; 12, 13, 14, 15; 16, 17, 18; 19, 20, 21, 22; 23, 24, 25, 26 ¦ ¦(Affirmations)¦ ¦ ¦and Memoranda ¦ ¦ ¦of Law ¦ ¦ +------------------------------------------------------------------------------------+
In this personal injury action arising from a construction-site accident, the Court has before it four motions for summary judgment. All the motions are timely and will be decided on the merits. These motions are consolidated for disposition in a single decision and order. The Court in its discretion has considered all surreplies and responses thereto ( see Held v. Kaufman, 238 A.D.2d 546, 548 [2d Dept 1997], affd as modified91 N.Y.2d 425 [1998] ).
In motion sequence No. 7, defendant Five Star Electric Corp. (Five Star) moves for an order granting it: (1) summary judgment dismissing plaintiff's complaint against it, (2) summary judgment dismissing co-defendants' cross claims against it, or, in the alternative: (3) preclusion of any proposed expert testimony as to the manner in which the accident occurred, (4) partial summary judgment on its contractual indemnification claim against second third-party defendant A.J. Pegno Construction Corp./Tully Construction Co., Inc., a joint venture (collectively with its joint venture members, Pegno), and/or (5) an adverse interest charge against Pegno at the time of trial.
In motion sequence No. 8, defendant/second third-party plaintiff Hazen & Sawyer P.C./Malcolm Pirnie, Inc. (Hazen), a joint venture of two entities, both of which also are sued individually, moves for an order granting it summary judgment dismissing plaintiff's complaint and all cross claims insofar as asserted against it.
In motion sequence No. 9, defendant/third-party plaintiff the City of New York (the City) moves for an order granting it partial summary judgment dismissing plaintiff's common-law negligence as well as Labor Law §§ 200 and 240(1) claims insofar as asserted against it, and awarding it conditional summary judgment on its contractual and common-law indemnification cross claims against Five Star and Hazen.
Finally, in motion sequence No. 6, Pegno moves for an order granting it summary judgment dismissing the second third-party action brought against it by Hazen as well as dismissing all cross claims against it.
Background
Plaintiff John O'Rourke, and his wife suing derivatively, commenced this action to recover damages, pursuant to Labor Law §§ 200, 240(1), and 241(6), and based on common-law negligence, for personal injuries he allegedly sustained while performing construction work inside one of the buildings comprising the Solids Handling Facilities at the Newtown Creek Water Pollution Control Plant, a public project of large magnitude and long duration, owned by the City. The construction project at which the subject accident occurred was let by way of multi-prime contracts. In multi-prime contracting, an owner contracts directly with various specialty trade contractors, such as electricity, mechanical and structural work, heating/ventilation and plumbing, to complete the different phases of the owner's construction project.
For this project, the City hired, among others, Five Star as the prime contractor to perform electrical work (Contract NC–31E) and Pegno as the prime contractor to perform concrete and steel construction (Contract NC–31G). In addition, the City hired Hazen as its construction manager (Contract NC–UPGR CM).
“Separate contracts are used in highly complex projects and by experienced owners. Some examples are ... large public works projects ... Some public entities, such as ... the City of New York [in accordance with General Municipal Law § 101], require pre-filed bids by major specialty trades and the use of profiled bids by successful prime contractors” (Jonathan J. Sweet, Sweet on Construction Industry Contracts: Major AIA Documents, § 18.02, at 787).
On January 4, 2005, plaintiff, then 41 years old, was employed by Pegno as a laborer with its stripping crew and received all of his work-related instructions and supervision from Pegno's site foreman, Giovanni Laucella. He received from Pegno his work equipment, except for his personal hand tools. At the time of the accident, he was using for illumination one of many lighting units owned, assembled, and provided to the project site by Five Star.
A lighting unit consisted of a lighting fixture (essentially, a flood light), a power cord, and a clamp.
Five Star's general foreman testified (at page 27 of his deposition) that “[t]here was a hundred of them on the job site.”
These components were separately purchased by First Star from the manufacturer and were assembled by Five Star into a single lighting unit. In assembling a lighting unit, Five Star did not include with it another component—a ground fault circuit interrupter (GFI) in the shape of an extension cord—although Five Star had GFIs readily available.
A clamp was necessary because, per the deposition testimony of Five Star's general foreman (at page 27 of his deposition), a lighting unit “had to be affixed to some kind of structure. I don't know if it was to a building structure or scaffolding structure.”
GFIs were critical to the project for several reasons: the project was in a damp location; GFIs were more sensitive than the circuit breakers that were grounding the power lines; and the lighting units lacked on/off switches. As Five Star's general foreman Gene Comerford explained (at pages 68 and 106 of his deposition):
A GFI is a “device intended for the protection of personnel that functions to de-energize a circuit or portion thereof within an established period of time when a current exceeds [certain] values ...” (National Electrical Code, 2002 edition, page 70–36). Per the testimony of Five Star's general foreman (at page 64 of his deposition), a “GFI is a separate plug, a separate extension cord, it's about three to six feet long ...”
Q.What does grounding mean, what does it mean to ground something?
A. It means it's safe, secure. There is a short, it's gonna short out and your circuit breaker will trip. If it's GFI protection and it meets water, it's going to shut the circuit down. For life safety protection.”
* * *
Q.Other than the GFIs going off because of water conditions, are you aware of any other condition or reason any of the GFIs trip?
A. They [GFIs] trip like a regular circuit breaker, they are just a little more sensitive. A tool overheating, a short in the cord, a short in the drill, various reasons” (emphasis added).
While Mr. Comerford acknowledged the important safety aspects of GFIs, he left it to other contractors to decide whether to supply their own GFIs when they were using Five Star's lighting units:
“Q.Why would a contractor have to supply his own GFI cords in addition to the GFI that the [power line] has?
* * *
A. To protect themselves. There is a lot of water on the job, you don't want to get electrocuted ” (emphasis added).
(Comerford [Five Star] Tr at 65).
Mr. Comerford admitted (at pages 41–42 and 67 of his deposition) that Five Star's decision not to equip its lighting units with GFIs before making its lighting units available to other contractors was simply an issue of saving money:
“Q. Do you know whether or not [GFIs] were used by Five Star for the purpose of providing temporary lighting?
A. No ... [It] would be the subcontractors or other contractors [who] provided their own GFI protection.
* * *
“Q. Did non Five Star employees ever request to use [F]ive [S]tar extension cords [i.e., GFIs] on this site?
A. They have but they were never lent out.
Q. Is there any reason why?
A. Money. Everybody supplies their own stuff” (emphasis added).
Five Star's involvement at the project site was not limited to supplying the lighting units. In addition, Five Star installed temporary power lines throughout the project site, which supplied electricity to, among other equipment, the lighting units. Five Star “grounded” the temporary power lines via the circuit breakers located inside the distribution panels at or near the source of the electric power supplied to the project site by Consolidated Edison.
The circuit breakers within the distribution panels were the only type of electric shock protection provided by Five Star to the users of the lighting units. As noted, Five Star did not attach GFIs to its lighting units before making them available to other contractors. This was at odds with Mr. Comerford's deposition testimony that “most electricians” would provide two concurrent types of shock protection, given this project's damp location: first, by attaching a GFI to the lighting unit and, second, by having operable/adequate circuit breakers servicing the temporary power line into which the lighting unit was plugged. As Mr. Comerford elucidated (at page 65 of his deposition):
See Mr. Comerford's pretrial testimony at pages 65 and 78:
“Q. Does a laundry drop apparatus [ i.e., a temporary power line] have GFI?
A. At that stage of the job, yes, they [Five Star] did have—their circuit breakers were GFI—protected at that stage of the job ... At that time stage of the job, so everybody understands, in the electrical panels I had GFI protection.
Q. The GFIs that Five Star supplied, were they individual plugs or circuit breakers?
A. Circuit breakers within a panel ” (emphasis added).
“A.... There is a lot of water on the job, you don't want to get electrocuted.
Q. So in that situation there would be two layers of GFI [i.e., shock protection]?
A. On a lot of applications, yes. Most electricians do it ...” (emphasis added).
In fact, according to Five Star's general foreman (at page 66 of his deposition), “a lot of contractors for Five Star would add a GFI within the line of the extension cord because the job was [at] a very wet location.”
At the time of the accident, plaintiff was standing on a metallic scaffold provided to him by Pegno, removing wood forms from the ceiling with a hammer. It was raining, and the inside of the partially constructed building in which plaintiff was working was damp. There were water puddles about half an inch deep on the building floor on which plaintiff's metallic scaffold rested. The lighting unit had been tied
at the floor level to the bottom vertical beam of plaintiff's scaffold and had been positioned by plaintiff's foreman about ten feet away from the nearest wall opening, further exposing it to the rain. Plaintiff was wet from the rain, sweat, and water that fell on him from the ceiling as he was removing wood forms. He was not given insulated protective equipment. His own work gloves—even if he wore them—were not insulated. His lighting unit was not equipped with a GFI, but was plugged by his foreman directly into a temporary power line, which was grounded by Five Star via the circuit breakers within the electrical distribution panels.
The record is contradictory as to whether the lighting unit was tied to the scaffold with a metallic wire or a nylon rope.
Plaintiff's co-worker, who had been stationed on the adjoining scaffold at about the same height as plaintiff, witnessed the accident. According to plaintiff's co-worker, some time before the accident (the exact time is in dispute), a piece of wood which plaintiff was then stripping from the ceiling fell down to the ground, hitting the lighting unit attached to the bottom of plaintiff's scaffold and breaking the lighting unit's top cover, but not its light bulb. As plaintiff's co-worker testified (at page 131 of his deposition), it was custom and practice for laborers when stripping ceiling forms to drop them down from scaffolding. As a general matter, the fact that a lighting unit could be damaged at the project site was not unusual, as Mr. Comerford testified (at page 106 of his deposition):
“Q.How many of the temporary light fixtures [ i.e., the lighting units] were replaced at the site?
* * *
A. Maybe five.
Q. Do you know why they were replaced?
A. Damage by others.
Q. Do you know what the nature of the damage by others were?
A. Construction hazards ” (emphasis added).
See also the following colloquy on page 71 of Mr. Comerford's deposition transcript:
“Q. What, if any, maintenance was done to the floodlights [i.e., the lighting units] after they were installed?
A. Was there any maintenance done?
Q. Yes.
A. No. Normally if a light was broken you replace it with a new one ” (emphasis added).
Despite the damage to the lighting unit from the construction debris, the lighting unit apparently remained energized, its bulb remained lit, and the circuit breakers within the electrical distribution panels were not tripped after the construction debris hit the lighting unit. The temporary power line continued to supply electricity to the lighting unit. Immediately before the accident, plaintiff's co-worker heard a sound of electricity,
but the circuit breakers in the distribution panels again failed to trip. Almost instantaneously after his co-worker heard that sound, plaintiff received a single shock of electricity (nominally, 220 volts or lower) when he touched the metallic scaffold with one of his hands. The injuries of which he complains include a 70–71% loss of vision in both eyes and serious cervical/lumbar disc/nerve damage. After receiving the jolt, at no time did plaintiff fall off the scaffold. Some time later that morning or early afternoon, he descended from the scaffold on his own. He sought medical attention the following day.
See the testimony of plaintiff's co-worker (at pages 51 and 53 of his deposition):
“A. I heard something like an electricity running through something. I heard something like that, I think when he [plaintiff] was touching the scaffold.
Q. For how long did you hear that sound?
A. It was less than a second.
Q. [F]rom the time you saw him [plaintiff] off balance until the time he grabbed the scaffold, at what point during that sequence did you hear the electricity sound?
A. I think it was before he lost his balance.”
On the date of the accident, plaintiff's employer, Pegno, acting through its site safety officer Charles Keating, removed the lighting unit at issue from the scene of the accident. Mr. Keating, a former NYPD police officer, stored the offending lighting unit under Pegno's trailer which was located in a fenced-in area that was accessible during regular working hours to Five Star, among other trades. The lighting unit disappeared from underneath Pegno's trailer before Pegno's insurance investigator could inspect it, and its whereabouts is unknown.
As the Court understands the essence of this case, plaintiff's injuries—an electric shock and its consequences—allegedly resulted from an ungrounded lighting unit and/or an inadequately grounded temporary power line in the plaintiff's work area. Stated somewhat differently, plaintiff's accident (aside from the allegedly contributory negligence on the part of plaintiff's foreman and plaintiff himself) arose from the dual inadequacies of the electric shock protection provided by Five Star to the users of its lighting units at the project site. First, the temporary power line's circuit breakers were never tripped, despite a damage to the lighting unit and despite its damp location, and thus permitted plaintiff's metallic scaffold to be energized. Second, the lighting unit at issue was not equipped with a GFI, even though Five Star knew that (1) other trades were using its lighting units in damp locations (in fact, the entire project site was one big damp location
), and (2) the exterior damage to the lighting units was one of “construction hazards.” In this regard, the following excerpt from Mr. Comerford's deposition testimony (at pages 107–108 of his deposition) is essential to the Court's decision:
Per Mr. Comerford's testimony (at pages 66 and 138–139 of his deposition transcript): “[T]he job was [at] a very wet location. The drainage was poor, the building was open and there was a lot of water allover the job, inches of water, very deep in some locations”; “at the stage of the construction we are at we have a water condition ... Everybody knew about it. It wasn't only rainwater on that job, it was underground water. You are under sea level and you are under the East River.”
“Q.If there was a short in one of the temporary lights and the light was touching a metal scaffold, and the light shorted out, would that cause the GFI to trip?
A.Yes, it would.
Q.If a temporary light fixture was malfunctioning and electrified a metal scaffold would that cause the GFI to trip?
A.To my electrical knowledge, yes, it would probably cause an over current and the breaker would trip.
Q. Would the GFI that were installed in the panels prevent a person from being shocked by standing and holding onto a metal scaffold that was electrified?
A. I don't know the answer to that ” (emphasis added).
This litigation has been active since its inception six years ago. At some point in the case, Pegno has assumed the City's defense.
Standard of Review
The Court's function on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist ( see Zuckerman v. City of NY, 49 N.Y.2d 557, 562 [1980] ). The moving party carries the initial burden of tendering sufficient evidentiary proof, in admissible form, to demonstrate the absence of any material issues of fact as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial ( see Alvarez, 68 N.Y.2d at 324). The Court is required to view the evidence in the light most favorable to the nonmoving party and to give the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence ( see Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626 [1985] ). If there is any doubt as to the existence of a triable issue, summary judgment should be denied ( see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 [1978] ).
Plaintiff's Claims Against Five Star
Plaintiff's Labor Law § 240(1) Claim Against Five Star
Plaintiff's Labor Law § 240(1)
claim is dismissed because it is undisputed on the record that his accident was not gravity-related. Plaintiff was injured neither by a fall from elevation nor as a result of being struck by a falling object that was required to be secured. His description of the accident—that he sat down on the floor of the scaffold as a result of sustaining an electric shock—cannot support this claim. Moreover, he has agreed in his omnibus response to withdraw this claim against all defendants in the underlying action. Accordingly, the branch of Five Star's motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim insofar as asserted against it is granted, and such claim is hereby severed and dismissed ( see Smith v. County of Nassau, 242 A.D.2d 380, 381 [2d Dept 1997] ).
.Labor Law § 240(1) provides, in relevant part, that:
All contractors and owners and their agents, ... in the erection ... of a building ... 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.”
Plaintiff's Labor Law § 241(6) Claim Against Five Star
The Court finds that Five Star is a proper Labor Law § 241(6)
defendant, since it functioned as a contractor or the City's statutory agent insofar as all electrical work at the project site was concerned. A prime contractor, such as Five Star, may be held liable as a contractor or the owner's statutory agent for injuries sustained in those areas and activities within the scope of the work delegated to it ( see Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059, 1060 [4th Dept 2004]; O'Connor v. Lincoln Metrocenter Partners, 266 A.D.2d 60, 61 [1st Dept 1999] ). Here, pursuant to its contract with the City, Five Star was responsible for the temporary power lines, the lighting units, and the safety of its work. In fact, Five Star provided electric power and lighting units for the separate needs of various contractors on the job (laborers, carpenters, metalworkers, plumbers, among others) (Romano [Hazen] Tr at 33). As Five Star's general foreman Mr. Comerford summarized (at page 35 of his deposition), “[w]e are responsible for the electricity on the construction site.”
.Labor Law § 241(6) provides, in relevant part, that:
“All contractors and owners and their agents, ... when constructing ... buildings ..., shall comply with the following requirements: ...
All areas in which construction ... 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 ...”
Accordingly, the Court finds the existence of triable issues of fact regarding whether or not Five Star is subject to liability as a contractor or statutory agent with respect to the electrical work that resulted in plaintiff's injuries ( see Martinez v. Tambe Elec., Inc., 70 AD3d 1376, 1377 [4th Dept 2010] ).
The Court will read no limitations into the scope of Five Star's electrical work because Five Star (or any other party for that matter) has failed to provide the Court with a complete copy of Five Star's contract, including Five Star's job specifications.
The next issue is whether plaintiff will be able to demonstrate that he can meet the additional requirements of Labor Law § 241(6); namely, that his injuries were proximately caused by a violation of an Industrial Code regulation that is applicable given the circumstances of the accident, and that such regulation sets forth a concrete or specific standard of conduct ( see Ross v. Curtis–Palmer Hydro–Electric Co., 81 N.Y.2d 494, 503–504 [1993] ). Here, plaintiff, in opposition to defendants' motions, fails to argue that liability pursuant to Labor Law § 241(6) can be established on the basis of their alleged violations of Industrial Code §§ 23–1.5 (General Responsibility of Employers), 23–1.15 (Safety Railing), 23–1.16 (Safety Belts, Harnesses, Tail Lines and Lifelines), and subpart 23–5 (Scaffolding). Furthermore, the Court finds that these provisions are either non-specific or inapplicable under the facts of this case and, thus, serve as an insufficient premise for a viable cause of action under Labor Law § 241(6) ( see Harsch v. City of NY, 78 AD3d 781, 783 [2d Dept 2010] ). Accordingly, the Court grants the branch of Five Star's motion seeking dismissal of plaintiff's Labor Law § 241(6) claim, to the extent predicated upon Industrial Code §§ 23–1.5, 23–1.15, 23–1.16, and subpart 23–5, insofar as asserted against it, and such claim is hereby severed and dismissed.
Plaintiff, however, contends that his Labor Law § 241(6) claim is properly asserted against Five Star based upon its alleged violation of Industrial Code §§ 23–1.13(b)(3) and 23–1.13(b)(4) (Electrical Hazards). Courts have found that Industrial Code § 23–1.13(b) and its subsections state a specific positive command ( see Hernandez v.. Ten Ten Co., 31 AD3d 333, 333–334 [1st Dept 2006] ). While Industrial Code §§ 23–1.13(b)(3) and 23–1.13(b)(4) expressly refer to the duty of employers only, such subsections have been broadly interpreted to impose also a duty upon owners and its agents ( see Rice v. City of Cortland, 262 A.D.2d 770, 773 [3d Dept 1999] ). Indeed, the Industrial Code states that part 23 applies, inter alia, to owners and their agents ( see12 NYCRR 23–1.3 [Application] ).
Thus, the Court rejects Five Star's argument that Industrial Code 23–1.13(b) is inapplicable because it was not plaintiff's employer.
While note 1 accompanying 12 NYCRR 23–1.3 suggests that 12 NYCRR 23–1.13 is an exception and applies solely to employers, appellate courts have disagreed, holding that section 1.13 is broader and applies to owners and their agents ( see Johnson v. Ebidenergy, Inc., 60 AD3d 1419, 1421 [4th Dept 2009]; Rice, 262 A.D.2d at 774, n 2).
Industrial Code § 23–1.13(b)(3) provides that employers must ascertain “whether any part of an electric[al] power circuit ... is so located that the performance of the work may bring any person, tool or machine into physical or electrical contact therewith” and must advise employees and post warning signs as to the locations of such hazards and the protective measures to be taken. Here, a violation of Industrial Code § 23–1.13(b)(3) may arise from Five Star's alleged failure to warn plaintiff of the risks that (1) the circuit breakers servicing the temporary power line might not trip to prevent an electric shock, and (2) its lighting unit was ungrounded ( see Bardouille v. Structure–Tone, Inc., 282 A.D.2d 635, 636 [2d Dept 2001] ).
A companion provision, Industrial Code § 23–1.13(b)(4), requires that employers protect their employees from electric shocks by de-energizing the electrical power circuit and grounding it or by guarding such circuit by effective insulation or other means. Here, a violation of Industrial Code § 23–1.13(b)(4) may arise from the alleged inadequacy of the electric shock protection provided by Five Star at the project site to the users of its temporary power lines and lighting units. First, the temporary power line's circuit breakers which were supposed to engage instantaneously and protect plaintiff from an electric shock did not trip. In fact, the power line's circuit breakers failed to trip, even after the lighting unit's cover had been broken, and thus permitted the electricity to continue to travel to the lighting unit and then on to plaintiff's metallic scaffold from which he received an electric shock. Second, the lighting unit at issue was not separately grounded with a GFI, although “most electricians,” according to Mr. Comerford, would have done so, given the project's damp location. Because of Five Star's failure to attach a GFI to its lighting units, plaintiff's foreman was able to plug the lighting unit at issue directly—and without a GFI—into the temporary power line. Thus, construing the evidence in a light most favorable to plaintiff as the party opposing the instant summary judgment motions and resolving all reasonable inferences in his favor, the Court finds that Five Star has failed to make a prima facie showing of the absence of legitimate questions of fact as to whether it violated Industrial Code §§ 23–1.13(b)(3) and/or 23–1.13(b)(4) ( see Baumann v. Metropolitan Life Ins. Co., 17 AD3d 260, 261–262 [1st Dept 2005]; Mondore v. Stinson, 2009 WL 1849788, 2009 N.Y. Slip Op 31348[U] [Sup Ct, Onondaga County 2009] ).
With respect to the issue of proximate cause, a Labor Law § 241(6) violation results in vicarious, but not in absolute, liability and comparative negligence is a defense thereto, so that the jury may assess plaintiff's own culpability in awarding damages ( see Neumire v. Kraft–Foods, Inc., 291 A.D.2d 784, 784–785 [4th Dept 2002], lv denied98 N.Y.2d 613 [2002] ). The Court finds triable issues of fact as to whether plaintiff (either alone or together with his foreman) shares some blame for the accident. In this regard, the record includes deposition testimony that: (1) some time before the accident, plaintiff may have broken the protective cover of the lighting unit and thus exposed himself to the danger of receiving an electric shock; and (2) plaintiff's foreman, without notifying Five Star, may have moved and attached the lighting unit to plaintiff's scaffold at the beginning of plaintiff's work shift. But even assuming arguendo that plaintiff and his foreman did engage in the alleged misconduct, Five Star should have been aware that plaintiff would be required to work in close proximity with electric sources, and thus the allegedly negligent conduct of plaintiff and/or his foreman in relation to the lighting unit cannot be viewed as so unforeseeable or egregious as to be the sole proximate cause of the accident warranting dismissal of this cause of action on summary judgment ( see Baumann v. Metropolitan Life Ins. Co., 17 AD3d 260, 261–262 [1st Dept 2005] ). Indeed, the alleged negligence of plaintiff or his foreman does not bar his Labor Law § 241(6) claim because the Labor Law and the Industrial Code are intended to protect workers even from their own errors in judgment ( see Lorefice v. Reckson Operating Partnership, LP, 269 A.D.2d 572, 573 [2d Dept 2000] ). Accordingly, the branch of Five Star's motion for dismissal of plaintiff's Labor Law § 241(6) claim, to the extent premised solely upon Industrial Code §§ 23–1.13(b)(3) and 23–1.13(b)(4), is denied.
Plaintiff's Labor Law § 200 and Common–Law Negligence Claims Against Five Star
Five Star also moves for summary judgment dismissing plaintiff's claims brought against it under Labor Law § 200 and for common-law negligence, contending that it did not control or supervise plaintiff's work and that it did not create the allegedly dangerous conditions or have actual or constructive notice of them. Labor Law § 200
is “a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” ( Ortega v. Puccia, 57 AD3d 54, 60 [2d Dept 2008] ). Liability is limited to parties who (1) either exercise supervision or control over a plaintiff's work out of which the injury arises (the “manner of work” category), or (2) who create or have actual or constructive notice of an unsafe condition which causes the plaintiff's injury where a premises condition is at issue (the “dangerous condition” category) ( see Chowdhury v. Rodriguez, 57 AD3d 121, 128 [2d Dept 2008] ).
.Labor Law § 200(1) provides, in relevant part, that:
“All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.”
The Court finds that Five Star has demonstrated, prima facie, its entitlement to judgment as a matter of law with regard to the “manner of work” category, since there is nothing in the record to indicate that it had the authority to control the manner or method by which plaintiff performed his work. Because Pegno employed plaintiff and the record is otherwise devoid of any showing that Five Star in any way exercised supervisory control over plaintiff's activities, no issue of fact has been raised with respect to Five Star's showing of non-liability under the “manner of work” category ( see Lombardi v. Stout, 80 N.Y.2d 290, 295 [1992] ).
That does not end the Court's inquiry, however, because Five Star also must demonstrate that it did not create or have actual or constructive notice of an unsafe condition which caused plaintiff's injury ( i.e., the “dangerous condition” category). Such additional proof is necessary, since plaintiff's Labor Law § 200 and common-law negligence claims do not fully implicate the “manner of work,” but also include the “dangerous condition” category.
The key fact here is that Five Star, and not plaintiff's employer, was contractually responsible for illuminating plaintiff's work area because he was working inside a building. In furtherance of its contractual obligations, Five Star installed the temporary power line with the circuit breakers and the distribution panels, as well as purchased, assembled, and supplied the lighting unit at issue. It is well established that “the common-law duty of the owner [or its agent] to provide a safe place to work, as codified by Labor Law § 200(1), has been extended to include the tools and appliances without which the work cannot be performed and completed” ( Chowdhury, 57 AD3d at 128–129). Thus, where, as here, the property owner's statutory agent “lends allegedly dangerous or defective equipment to a worker [or the worker's employer] that causes injury during its use, the [statutory agent] moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition” ( Chowdhury, 57 AD3d at 131–132).
Plaintiff's bill of particulars alleges, among other things, that Five Star and other direct defendants failed and omitted to “provide the plaintiff with a safe place to work,” to insure that the working areas within the premises of the construction site ... were kept free of hazardous conditions”; “to properly inspect the construction site”; and “to properly secure the work area so that plaintiff could perform his labor in a safe environment .”
Although in Chowdhury, the owner, rather than its agent, lent its allegedly defective equipment to the injured worker, the same legal standard should apply where, as here, the owner's agent, rather that the owner, supplies its allegedly dangerous equipment to a worker or the worker's employer.
Having parsed the record, the Court finds that Five Star has failed to meet its burden of establishing that it neither created the alleged defect in the power line/circuit breakers and in the lighting unit at issue, nor had actual or constructive notice of their allegedly defective or dangerous condition. Such a finding is evident from at least two sets of allegations. First, the record discloses that Five Star provided at plaintiff's damp work site electricity that was supplied through a temporary power line that allegedly was not equipped with sufficiently sensitive circuit breakers to prevent an electric shock. Second, the record demonstrates that Five Star allegedly furnished plaintiff's employer with a lighting unit that was not equipped with a GFI, even though, in Mr. Comerford's words, a GFI was “a little more sensitive” than the circuit breakers in preventing an electric shock. If the Court were to credit Mr. Comerford's testimony that only the Five Star employees were qualified to move or reposition its lighting units at the project site, it stands to reason that Five Star was likewise responsible for equipping its lighting units with GFIs, so as to avoid—as well as to correct—any unsafe condition that likely would result from their use in damp locations. While Mr. Comerford acknowledged that “most electricians” would have attached a GFI to a lighting unit, he explained that “[m]oney” was the reason why Five Star refused to provide GFIs to other trades even when so requested. Thus, Five Star's own submissions, and particularly Mr. Comerford's deposition testimony, raise a triable issue of fact whether Five Star created and exacerbated these dangerous conditions ( see Verel v. Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1156 [4th Dept 2007]; Arenas v. Bon–Ton Dept. Stores, Inc., 35 AD3d 1205, 1206–1207 [4th Dept 2006]; Pirrotta v. EklecCO., 292 A.D.2d 362, 364 [2d Dept 2002] ).
Equally important, the duty of an owner or its agent to provide a safe place to work encompasses “the detection of dangers discoverable by reasonable diligence” (Seigel v. Prima Concrete Constr. Corp., 27 A.D.2d 946, 947 [2d Dept 1967] ). There is a triable issue of fact as to whether Five Star could have discovered, by visiting a damp location where plaintiff was working, that he was using a Five Star lighting unit without a GFI. In fact, about four hours before plaintiff's accident, Five Star had its own weekly site safety tool box meeting for its employees.
Another issue of fact exists as to whether Five Star could have discovered, by reasonable inspection, that the circuit breakers servicing its temporary power line in the building in which plaintiff was working were inadequate. Although Five Star allegedly had been checking its temporary power lines and circuits once a month in the beginning of each month, its last inspection took place in the December preceding the month of the accident, and it conducted no such inspection for the month of January before plaintiff had his accident on January 4. It is, therefore, for the jury to determine whether, despite these efforts, the circuit breakers, at the time of plaintiff's accident, did not provide adequate shock protection and, if so, whether these inspections served to put Five Star on notice as to the inadequacy of its circuit breakers ( see McDonald v. UICC Holding, LLC, 79 AD3d 1220, 1223 [3d Dept 2010], lv denied17 NY3d 769 [2011] ). Accordingly, this branch of Five Star's motion is denied without regard to the sufficiency of plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
Plaintiff's accident occurred on a Tuesday, at about 11 a.m. According to Mr. Comerford's testimony (at page 38 of his deposition), he conducted a tool box safety meeting for its employees every Tuesday at 7 a.m.
The Court considers it necessary to address Five Star's remaining contentions so as to leave no doubt why the issue of Five Star's alleged common-law negligence and violation of Labor Law § 200 should be submitted to a jury. Five Star argues that plaintiff's accident resulted from the allegedly defective means he utilized to perform his work, rather than from a dangerous condition at the work site. In this regard, Five Star emphasizes that plaintiff's foreman attached the lighting unit to plaintiff's scaffold on the morning of the accident, that Five Star lacked the authority to supervise and control plaintiff's work, and that plaintiff's own negligence in breaking the lighting unit caused the accident, with no contributory negligence on Five Star's part. The fallacy of this argument lies in Five Star's refusal to consider the alleged inadequacy of its shock-prevention devices at the work site. As noted, the key factors in plaintiff's accident were Five Star's alleged failure to install for its power lines sufficiently sensitive circuit breakers to prevent an electric shock and its additional failure to equip its lighting units with GFIs. That the lighting unit at issue was attached to plaintiff's scaffold, rather than to a stand-alone post, does not excuse Five Star's alleged negligence, since “there may be more than one cause of an occurrence, with injury attributable to two or more tortfeasors” (Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47, 52 [2d Dept 2011] ). Even if this action represents “a rare hybrid case where, arguably plaintiff's accident and injury were proximately caused in whole or in part” by the allegedly dangerous premises conditions as well as by the faulty “manner of work” (Reyes, 83 AD3d at 48), Five Star can be “entitled to summary judgment only when the evidence exonerates it as a matter of law for all potential concurrent causes of plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” ( id. at 48–49 [emphasis added] ). As noted, however, Five Star has failed to demonstrate that there were no triable issues of material fact as to whether the equipment and safety measures it provided at the project site to prevent electric shocks were adequate.
Five Star's argument that plaintiff has offered no expert evidence that it created an allegedly dangerous condition is a minor variation on its main theme that plaintiff's “manner of work” was the sole cause of his accident. It amounts to a claim that plaintiff must offer expert proof that Five Star's lighting unit was defective, improperly installed, or improperly grounded. Five Star maintains that no such expert evidence is available because the lighting unit at issue disappeared days after the accident and was never tested by any party. Five Star posits that without an expert inspecting the lighting unit at issue, any testimony concerning its alleged defects or improper installation would be speculative, and without such expert testimony, plaintiff has no case. The Court rejects this argument because the allegedly defective internal wiring of the lighting unit at issue plays no role in the Court's determination. For the sake of consistency, the Court has given no weight to plaintiff's expert affidavit or to the investigative reports of Pegno's site safety officer, Charles Keating, on which plaintiff's expert relies.
Mr. Keating's “site incident report” describes the cause of plaintiff's accident as, among other things, “improper wiring grounded.” The “accident investigation report,” also prepared by Mr. Keating, similarly attributes “malfunction of wiring” to one of the root causes of plaintiff's accident (the other cause being improper grounding). Because Mr. Keating admitted at his pretrial deposition that he did not disassemble the lighting unit at issue, Mr. Keating's description of the cause of the accident in these reports can only be attributed to the conditions which he could observe only on his inspection of the exterior of the lighting unit at issue. Although Mr. Keating could not opine if the lighting unit at issue was (or was not) improperly wired, he could validly state, based on his examination of the exterior of the lighting unit and its relative positioning, that the direct cause of plaintiff's accident was “Electrical Appliance secured to aluminum shoring scaffold—Voltage lea[k]age from 220 v transforme[r].” Nevertheless, to deflect Five Star's reliance on Mr. Keating's descriptions of plaintiff's accident as a basis for dismissing the case against it, the Court has disregarded Mr. Keating's reports in their entirety.
Five Star posits that, as a matter of law, an electrician cannot be responsible for every accident on a work site involving electricity, merely because its electrician provided electricity at the work site. Recognizing that determination of negligence is a fact-sensitive inquiry not susceptible to applying generalizations to a particular person or situation, Five Star poses a hypothetical example of a worker from another trade inserting a screwdriver into a live electric outlet and receiving a shock. While Five Star obviously is not responsible for every electricity-related accident on a work site, this case falls far short of requiring Five Star to live up to that obligation. Its hypothetical example of a presumably rare scenario provides no serious cause for concern. Here, Five Star not only failed to supply the lighting units to the trades with the necessary GFIs despite the project's damp location, but its temporary power lines were also allegedly inadequate to prevent an electric shock. Direct evidence in this regard comes from the mouth of Five Star's general foreman, Mr. Comerford, that “most electricians” would have provided two layers of electric shock protection at the project. In other words, Five Star allegedly did not do in this case what “most electricians” in the opinion of its own general foreman would have done.
Five Star also repeatedly cites to the deposition testimony of plaintiff's co-worker that, before the accident, plaintiff may have dropped construction debris onto the lighting unit and broken its cover. Five Star harps on this issue as though it disposes of the entire case, but even if a short circuit had occurred at the time the construction debris hit the lighting unit, such an occurrence would not foreclose an inquiry into whether Five Star had provided adequate electric shock grounding in the first place. The record indicates that even after the lighting unit's damage from the construction debris, the power line's circuit breakers failed to trip and the lighting unit's bulb remained lit, but that some time thereafter—the exact timing is in dispute—there was a hum of electricity in the air potentially indicating a short circuit, but the breakers again failed to trip. More importantly, damage to the lighting units from construction hazards was not an unforeseeable extraordinary circumstance at this project site because Five Star had replaced five lighting units at the project site. By its actions and omissions, Five Star allegedly increased the risk that plaintiff or any other worker at the project site could sustain an electric shock. The foreseeability, or not, of the exact sequence of events which culminated in plaintiff sustaining an electric shock does not absolve Five Star from its own negligence.
It cannot escape liability by pushing its responsibility for the electric shock entirely onto plaintiff and his foreman.
SeeRestatement (Second) of Torts, § 442B (Intervening Force Causing Same Harm as that Risked by Actor's Conduct), comment (b) (“If the actor's conduct has created or increased the risk that a particular harm to the plaintiff will occur, and has been a substantial factor in causing that harm, it is immaterial to the actor's liability that the harm is brought about in a manner which no one in his position could possibly have been expected to foresee or anticipate.”). Illustration (3) in the Restatement is particularly apt: “The A Telephone Company negligently allows its telephone pole, adjoining the public sidewalk but several feet from the street, to become riddled with termites, thus creating the risk that the pole will fall or be knocked over and so injure some person using the sidewalk. An automobile negligently driven by B at excessive speed leaves the highway, comes up on the sidewalk, and knocks the pole over. It falls upon C, a pedestrian on the sidewalk, and injures him. A is subject to liability to C.”
SeeRestatement (Second) of Torts, § 302 (Risk of Direct or Indirect Harm), comment (d) (Probability of Intervening Action) (“If the actor's conduct has created or continued a situation which is harmless if left to itself but is capable of being made dangerous to others by some subsequent action of a human being ... or the subsequent operation of a natural force, the actor's negligence depends upon whether he as a reasonable man should recognize such action or operation as probable.”] ); see also Chaaya v. The Gap, Inc., LLC, 2008 WL 4461397, 2008 N.Y. Slip Op 32593[U] [Sup Ct, N.Y. County 2008] [it was a question for the jury to determine whether placement of unsecured clothing bins on a top shelf, where a store customer could pull out one bin and accidentally drop it on another customer below the shelf, created an unreasonable risk of harm; the court denied summary judgment to the defendant store, citing Restatement [Second] of Torts, § 302, comment (d) ] ).
In moving for summary judgment dismissing the Labor Law § 200 and common-law negligence claims insofar as asserted against it, Five Star has the initial burden of making a prima facie showing that, among other things, it neither created the allegedly dangerous conditions nor had actual or constructive not ice of such conditions. Here, Five Star has failed to make such a prima facie showing as a matter of law.
Five Star's Defense of Spoliation
On a related note, Five Star moves for preclusion of any proposed expert testimony as to the manner in which the accident occurred and/or for an adverse interest charge against Pegno at the time of trial. According to Five Star, not only did Pegno's employees cause the accident by tying the lighting unit to plaintiff's scaffold and then smashing the lighting unit with construction debris, but also that Pegno's employee subsequently took possession of the lighting unit and physically “spoliated” it so as to remove all evidence of the corpus delicti. Five Star hammers on its theme that the disappearance of the lighting unit has irreparably impaired its defense, and it demands, among other things, that Pegno indemnify it for any resulting damages and that Pegno's answer be stricken.
In an attempt to bolster the significance of the missing lighting unit to its overall defense, Five Star proffers an affidavit of its expert, James S. Edmonds, a Life Fellow of the Institute of Electrical and Electronic Engineers (his professional licensing is not otherwise described). Mr. Edmonds recites a litany of the specialized tests he would have performed on the lighting unit if Pegno allegedly had not spoliated it. He advises the court that if only he had the missing lighting unit in his possession, he would have: (1) “visually inspect[ed][it] for any obvious defects that would render [it] dangerous and unsuitable for use,” (2) “ascertain[ed] if [it] was properly wired and had no [uninterrupted
] grounded circuits,” (3) “ascertain[ed] if there was any bare (uninsulated) wire that could have come in contact with the metal scaffold,” (4) “ascertain[ed][its] ballast configuration that could have been a constant wattage type having an isolated lamp circuit, which would have provided a safety factor against the danger of shock hazard,” and (5) “perform [ed] a leakage current test in a fashion typical of that described in UL [Underwriters Laboratories] 101, “Leakage Current for Appliances.”
The word “unintentional” appears in the original.
As the City notes in its opposition papers, to which Five Star responds but fails to address this point, Mr. Edmonds was not identified in pretrial disclosure, his affidavit was initially submitted on Five Star's summary judgment motion, and no excuse for his late disclosure has been offered. Accordingly, the Court, in the exercise of its discretion, rejects Mr. Edmonds' expert affidavit as untimely ( see Safrin v. DST Russian & Turkish Bath, Inc., 16 AD3d 656, 657 [2d Dept 2005] ).
By parity of reasoning, the Court rejects the affidavit of plaintiff's expert, Kathleen Hopkins because, as noted by Five Star, plaintiff first identified Ms. Hopkins in opposition to Five Star's summary judgment motion, after he filed a note of issue and certificate of readiness. Furthermore, plaintiff has not demonstrated how Ms. Hopkins, a certified site safety manager, is qualified to render an opinion as an electrician ( see Pellechia v. Partner Aviation Enters., Inc., 80 AD3d 740, 741 [2d Dept 2011], appeal dismissed, lv. denied16 NY3d 890 [2011] ). In any event, since plaintiff proffers Ms. Hopkins' affidavit to demonstrate a violation of the Industrial Code provisions pertaining to electrical hazards, the same is redundant, as no expert affidavit is required in that regard ( see Crespo v. HRH Constr. Corp., 24 Misc.3d 1246[A], 2009 WL 2877596, *9, 2009 N.Y. Slip Op 51893[U] [Sup Ct, N.Y. County 2009] [“plaintiffs were not required to submit the affidavit of an expert to establish, as a matter of law, a violation of” the Industrial Code provisions pertaining to electrical hazards]; see also Snowden v. New York City Tr. Auth., 248 A.D.2d 235, 236 [1st Dept 1998] [“no facts in addition to those alleged in plaintiff's complaint or bill of particulars, or inquired into at his deposition, are or need be alleged to make out (a violation of the Industrial Code provisions pertaining to electrical hazards)”] ). Lastly, the court notes that while the affidavits from both Ms. Hopkins and Mr. Edmonds are notarized out of state, they are not accompanied by an appropriate certificate of conformity in accordance with CPLR 2309(c) and, therefore, are considered unsworn for the CPLR purposes ( see DaimlerChrysler Servs. N. Am. v. Tammaro, 14 Misc.3d 128 [A], 2006 WL 3858398, 2006 N.Y. Slip Op 52506[U] [App Term, 2d & 11th Jud Dists 2006] ).
Even if the Court were to consider Mr. Edmonds' affidavit on the merits, it would not grant Five Star any relief on that basis. While Mr. Edmonds avers that it is impossible either for him or for any other expert to opine if the lighting unit at issue and/or its internal wiring was defective, such an opinion, if offered to the Court, would be of no probative value because Five Star's alleged negligence did not arise from inside the container that housed the lighting unit. As noted, Five Star's alleged negligence arises from its failure to protect plaintiff from an electric shock by either properly grounding the subject lighting unit via the circuit breakers in the temporary power line or by attaching a separate GFI to the subject lighting unit, or by performing both types of these activities.
Setting aside Mr. Edmonds' affidavit as a red herring, the Court looks instead to the applicable common-law doctrine of spoliation. If “a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading” (Denoyelles v. Gallagher, 40 AD3d 1027, 1027 [2d Dept 2007] [internal quotation marks omitted] ). However, if “the evidence lost is not central to the case or its destruction is not prejudicial, a lesser sanction, or no sanction, may be appropriate” (Klein v. Ford Motor Co., 303 A.D.2d 376, 377 [2d Dept 2003] ). “The determination of spoliation sanctions is within the broad discretion of the court” (Dennis v. City of NY, 18 AD3d 599, 600 [2d Dept 2005] ).
Based upon the record presented, Five Star has not demonstrated that either Pegno failed to preserve the subject lighting unit in bad faith, or that such failure rendered Five Star “prejudicially bereft of appropriate means to ... confront a claim with incisive evidence” (Tommy Hilfiger, USA v. Commonwealth Trucking, Inc., 300 A.D.2d 58, 60 [1st Dept 2002] [internal quotation marks omitted] ). Nor has Five Star shown that it will be unable to prove its case absent an actual inspection of the subject lighting unit. Indeed, Mr. Comerford readily described the type of the missing lighting unit at his pretrial deposition ( see Comerford [Five Star] Tr at 19; see also his testimony at page 26, “I knew off the top of my head what type of light it was.”] ). Last, but not least, the Court notes that the area from which the lighting unit at issue disappeared ( i.e., the space beneath the stairs leading to Pegno's trailer) was accessible during working hours to all trades (not just Pegno), so that the possibility that Five Star may have taken the light cannot be excluded. Accordingly, the Court concludes that Five Star is entitled to no spoliation or other remedy based upon its claim that Pegno or its employees spoliated the lighting unit at issue ( see Iamiceli v. General Motors Corp., 51 AD3d 635 [2d Dept 2008] ).
Plaintiff's Claims Against Hazen
The Court dismisses plaintiff's Labor Law § 240(1) claim as well as his Labor Law § 241(6) claim, to the extent not predicated upon Industrial Code §§ 23–1.13(b)(3) and 23–1.13(b)(4), against Hazen for the same reasons it dismissed these claims against Five Star. With respect to the remaining portion of plaintiff's Labor Law § 241(6) claim, Hazen, as a construction manager, may be subject to liability if it functioned as a general contractor or the City's statutory agent ( see Rodriguez v. JMB Architecture, LLC, 82 AD3d 949, 950 [2d Dept 2011] ).
Hazen's contract with the City was an owner-construction manager agreement. In that contract, Hazen was designated as the City's “representative” at the project site (Attachment 1, Task 2, at SR–15). In accordance with this contract, Hazen was granted the powers to “inspect the performance of the work” by the prime contractors; to inspect work on completion of each construction contract and prepare punch lists; and to report to the City when the project was completed and to recommend the City's acceptance (Attachment 1, Task 2 and its subsections, at pages SR–15 to SR–20). In addition, under the provisions inserted in Articles 30 and 31 of the prime contracts, Hazen had “the power, in the first instance, to inspect, supervise and control the performance of the work, and to issue change orders for extra work when designated in writing by the [City]”; to determine how the work of [of a particular prime contractor] shall be coordinated with work of other Contractors engaged simultaneously on this project, including the power to suspend any part of the work, but not the whole thereof.”
The record further demonstrates that: (1) Hazen had a resident engineer, as well as a number of inspectors for each particular type of the prime contract (two electrical inspectors for the Five Star contract; and at least three concrete/steel structure inspectors for the Pegno contract) at the project site every day; these inspectors walked the project site daily, prepared reports (one daily report per inspector), and visually verified which work had been performed; (2) Hazen had an on-site safety officer who worked with the prime contractors' own safety officers (each prime contractor had its own on-site safety officer) to ensure that the prime contractors worked in compliance with their respective health and safety plans for the project site; (3) Hazen chaired the monthly progress meetings with the prime contractors and, if there was any dispute between the prime contractors regarding the coordination of their work, Hazen would resolve such dispute; (4) Hazen answered the City's questions about construction; and (5) Hazen issued a stop-work order to Pegno on several occasions. In light of its broad responsibility as the overall supervisor for all the work being performed on the job site, Hazen has failed to make a requisite showing that it did not function as a general contractor or statutory agent at the project and, accordingly, the Court denies the branch of Hazen's motion for dismissal of plaintiff's Labor Law § 241(6) claim, to the extent premised solely upon Industrial Code §§ 23–1.13(b)(3) and 23–1.13(b)(4) ( see Walls v. Turner Constr. Co., 4 NY3d 861, 864 [2005];Nienajadlo v. Infomart New York, LLC, 19 AD3d 384, 385 [2d Dept 2005]; Kenny v. George A. Fuller Co., 87 A.D.2d 183, 190 [2d Dept 1982], lv denied58 N.Y.2d 603 [1982] ).
Before turning to consider plaintiff's Labor Law § 200 and common-law negligence claims, the Court notes a distinction made by Hazen between “temporary” and “final” work. It is undisputed that the power lines and lighting units at issue were part of “temporary” lighting, meaning that they were used during construction to enable the performance and completion of the “final” work (the construction of a building in the plaintiff's case). The record contains conflicting evidence as to whether Hazen was responsible for temporary lighting. According to its resident engineer Paul Romano (at pages 37 and 67 of his deposition), Hazen had no responsibility for temporary lighting:
“[The inspectors'] purpose ... is not to check the temporary lighting. Their purpose is to see that the finished work is to the standards that the City expects, so this whole task is not to look for temporary lighting.
* * *
We are only the inspectors of finished work; not temporary work.”
On the other hand, the contract documents are not so limiting. Hazen had the power under the Five Star contract to reject as hazardous any type of Five Star's work, whether temporary or final. In particular, Article 4 on page 22 of the Five Star contract provides that “the means and methods of construction shall be such as the Contractor [Five Star] may choose; subject, however, to the Engineer's [Hazen's] right to reject means and methods proposed by the Contractor which ... [w]ill constitute or create a hazard to the work, or to the persons or property ...” The term “means and methods of construction” is defined in Article 1, § 16 on page 20 of the Five Star contract as “the labor, materials in temporary structures, tools, plant, and construction equipment, and the manner and time of their use, necessary to accomplish the result intended by the Contract.” Moreover, pursuant to its contract with the City, Hazen had a corresponding duty to report to the City any hazardous means and methods of construction ( see Attachment 1, Task 2, at page SR–15). In addition, the record indicates that Hazen's on-site electrical inspector interacted directly with Five Star's general foreman, oversaw its electrical installations at the project site, and monitored its progress daily. In this regard, Hazen's inspectors could not have failed to observe the temporary power lines and lighting units because, according to Hazen's resident engineer Romano (at page 34 of his deposition), “[t]emporary power is a line item for payment; we [Hazen] only record that the work was done.” Based on the foregoing, the Court finds that Hazen has failed to make a prima facie showing that it lacked actual or constructive notice of the allegedly dangerous or defective conditions at issue. Accordingly, the branch of Hazen's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims insofar as asserted against it is denied.
Plaintiff's Claims Against the City
Plaintiff's Labor Law § 240(1) claim against the City is dismissed for the reasons stated above. Although the City has not moved to dismiss plaintiff's Labor Law § 241(6) claim, the Court, upon searching the record, is empowered to grant the City summary judgment dismissing plaintiff's Labor Law § 241(6) claim, to the extent not predicated upon Industrial Code §§ 23–1.13(b)(3) and 23–1.13(b)(4), as against the City is hereby severed and dismissed ( seeCPLR 3212[b]; Goldstein v. County of Suffolk, 300 A.D.2d 441, 442 [2d Dept 2002], lv denied100 N.Y.2d 509 [2003] ). Finally, plaintiff has consented to the dismissal of his Labor Law § 200 and common-law negligence claims against the City. Accordingly, this branch of the City's motion is granted, and such claims against the City are hereby severed and dismissed.
Defendants' Claims, Cross Claims, and CounterclaimsThe City's Cross Claims Against Five Star
The City moves for conditional summary judgment on its contractual and common-law indemnification cross claims against Five Star. In support of this branch of its motion, the City has submitted a portion of its Construction Contract Agreement with Five Star, dated August 17, 2000, wherein Five Star agreed to indemnify the City. Specifically, Article 7 (rev.9/98) provides, in relevant part, that:
If the persons or property of the City or of others sustain loss, damage or injury resulting from the negligence or carelessness of the Contractor [Five Star] ... in [its] performance of this Contract ..., the Contractor shall indemnify and hold the City harmless from any and all claims and judgments for loss[,] damages or injuries and from costs and expenses to which the City may be subjected or which it may suffer or incur by reason thereof” (emphasis added).
In opposition, Five Star argues that it was not negligent, but that plaintiff's accident occurred as a result of the negligence of plaintiff and his foreman in attaching the lighting unit to plaintiff's scaffold and then smashing the lighting unit with the construction debris. Five Star maintains that, in any event, a question of fact exists as to whether its alleged negligence caused plaintiff's accident.
The Court finds that the City's request for contractual and common-law indemnification against Five Star is premature. At this juncture, the City has not established, as a matter of law, that plaintiff's injury resulted from Five Star's negligence or carelessness, as required by the indemnification clause of the City's contract with Five Star ( see Baillargeon v. Kings County Waterproofing Corp., 91 AD3d 686, 688 [2d Dept 2012] ). Moreover, there are factual issues with respect to the relative culpability of Five Star, Hazen, and Pegno ( see Bellefleur v. Newark Beth Israel Med. Ctr., 66 AD3d 807, 809 [2d Dept 2009] ). Accordingly, the Court denies the branch of the City's motion for conditional contractual and common-law indemnification against Five Star, as well as denies the branch of Five Star's motion for dismissal of the City's contractual and common-law indemnification cross claims against it ( see Markey v. C.F.M.M. Owners Corp., 51 AD3d 734, 738 [2d Dept 2008]; Perri v. Gilbert Johnson Enters., Ltd., 14 AD3d 681, 685 [2d Dept 2005] ).
In addition, the City has asserted a cross claim for contribution against Five Star. “Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person” (Godoy v. Abamaster of Miami, Inc., 302 A.D.2d 57, 61 [2d Dept 2003], lv dismissed100 N.Y.2d 614 [2003] [internal quotation marks omitted] ). As the City's liability, if any, can only be vicarious, the City will not be entitled to contribution against Five Star. Thus, the branch of Five Star's motion for dismissal of the City's contribution cross claim against it is granted ( see Godoy, 302 A.D.2d at 62).
Lastly, the City has asserted against Five Star a cross claim for breach of contract to procure liability insurance. The Five Star contract (in § II.A of the General Conditions—Insurance) provides, in relevant part, that Five Star “shall procure a commercial general liability [CGL] insurance policy ..., naming the [City] as additional insured ..., and endorsed to cover liability assumed by [Five Star] under the indemnity provisions of this agreement” and that such “policy shall contain no exclusions or endorsements which are not acceptable to the City ...” (footnote omitted). Five Star asserts that it obtained a CGL policy from Westchester Fire Insurance Company (the Five Star insurer) for a one-year period, inclusive of the date of plaintiff's accident. Some time after plaintiff's accident, the City tendered the defense of this action to the Five Star insurer. By letter dated May 23, 2006, the Five Star insurer denied the City's request for defense, indemnification, and additional insured status, based upon, among other things, a lack of documentation indicating that the City qualified as an additional insured under the “Additional Insured—Owners, Lessees or Contractors (Form B)” endorsement of the Five Star policy. The Five Star insurer further indicated that it was not in possession of sufficient information to determine if, or to what extent, Five Star may owe contractual indemnity to the City. Sidestepping this shortfall of direct proof of coverage, Five Star instead contends that, as a general matter, it obtained proper insurance under its contract with the City and that, therefore, the City's breach of contract cross claim should be dismissed.
At this time, however, the Court finds no basis for the dismissal of the City's breach of contract cross claim because Five Star has failed to show that its insurer's disclaimer of coverage did not relate to whether the City was properly named as an additional insured under the Five Star policy, and that the work or claims at issue are covered by the Five Star policy. Accordingly, the branch of Five Star's motion for summary judgment dismissing the City's breach of contract cross claim against it is denied.
A copy of the Five Star insurance policy is not in the record.
The City's Cross Claims Against Hazen
The City also moves for conditional summary judgment on its contractual and common-law indemnification cross claims against Hazen.
In support of this branch of its motion, the City submits a portion of its contract with Hazen wherein Hazen agreed to indemnify the City. Hazen's contract with the City provides (in Article 15) that:
Although the City initially filed a third-party action against Hazen, the City filed cross claims against Hazen as soon as plaintiff amended his complaint to join Hazen as a direct defendant. According to the City, its cross claims have superseded its third-party action against Hazen ( see City's Memorandum of Law in Support, at 9).
“The Engineer [Hazen] shall be liable to and hereby agrees to indemnify and hold harmless ... the City and each officer, agent and employee of the City from any and all claims and judgments against any of them, for damages and from costs and expenses to which the City and its respective officers, agents, and employees may be subjected, or which they may suffer or incur by reason of any loss, property damage, bodily injury, or wrongful death, resulting from the negligence, carelessness or other act of the Engineer ..., in the performance of this Agreement, or from negligent failure to comply with any of the provisions of this Agreement, or of law” (emphasis added).
The City argues that it is entitled to relief because, according to plaintiff, Hazen negligently performed its work, and because it is the City's position that Hazen engaged in active wrongdoing. In response, Hazen, while pointing out that Pegno has been defending the City in this action, does not otherwise address this branch of the City's motion. Instead, Hazen sweepingly asserts that it was not the City's statutory agent for the purposes of Labor Law §§ 240(1) and 241(6), the argument which the Court has already decided against Hazen. In reply, the City correctly points out that Hazen had the power to reject the hazardous means and methods of performing work at the project site.
The Court denies the branch of the City's motion which is for contractual and common-law indemnification against Hazen as premature. The City has not established, at this time, that plaintiff's injury resulted from Hazen's “negligence, carelessness or other act.” Nor has the parties' relative culpability been ascertained. The Court also denies the branch of Hazen's motion for dismissal of the City's cross claims for contractual and common-law indemnification against it.
Next, because the City was not actively negligent, the Court grants the branch of Hazen's motion for dismissal of the City's contribution cross claim against it, and such cross claim is hereby severed and dismissed.
The City's final cross claim against Hazen is for breach of contract to procure liability insurance. The record indicates that Hazen obtained a CGL policy from Hartford Fire Insurance Company (the Hartford policy), while one of Hazen's partners (Malcolm Pirnie, Inc.) obtained a separate CGL policy from American Home Assurance Company (the American Home policy). Both insurers, by letters dated April 28, 2010 (in the case of Hartford) and September 9, 2010 (in the case of American Home) disclaimed coverage. Hartford advised that, among other things, the City did not qualify as an additional insured under the Hartford policy, coverage was barred by the professional liability exclusion of the Hartford policy, and the underlying accident did not arise out of the insured operations, work, or premises. Separately, American Home advised that the City was not entitled to coverage because, among other things, the underlying accident did not arise out of the insured's operations. In addition to disclaiming coverage based on the foregoing, Hartford and American Home each disclaimed coverage based on the City's failure to provide timely notice of claim as required by the applicable policy. Thus, even if Hazen breached its contractual obligation to obtain insurance coverage for the benefit of the City, there would be no causal relationship between the breach and any loss suffered by the City in the event the disclaimers based on the failure to provide timely notice are found to be valid. In that case, there would no causal relationship between the breach and any loss suffered by the City, as the loss would have been suffered even if Hazen had obtained the requisite insurance coverage ( see Bachrow v. Turner Constr. Corp., 46 AD3d 388 [1st Dept 2007] ). Moreover, assuming timely notice, any loss by the City resulting from the alleged breach would still be limited to the actual damages it suffered by reason of the breach and must be reduced to the extent that the City is covered by Pegno's insurance, less any out-of-pocket expenses ( see Inchaustegui v. 666 5th Ave. L.P., 96 N.Y.2d 111, 115–116 [2001] ). Accordingly, dismissal of the City's cross claim against Hazen for breach of contract to procure liability insurance is premature.
Cross Claims Between Five Star and Hazen
Five Star and Hazen have asserted cross claims against each other for contribution and for common-law and contractual indemnification. Dismissal of such cross claims is unwarranted at this time because of the existence of triable issues of fact concerning the degree of fault, if any, attributable to Five Star, Hazen, and Pegno ( see Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616, 620 [2d Dept 2008] ). Accordingly, the branches of Five Star's and Hazen's respective motions for dismissal of cross claims against each other are denied.
Five Star's and Hazen's Claims and Cross Claims Against Pegno
Turning to Pegno's papers for dismissal of contribution and common-law indemnification claims and cross claims against it, the Court notes that Pegno has made a prima face showing of entitlement to judgment as a matter of law by submitting evidence demonstrating that it obtained workers' compensation coverage,
and that plaintiff did not suffer a “grave injury”
Plaintiff has received workers' compensation benefits for the injuries he allegedly sustained in the accident.
under the Workers' Compensation Law through plaintiff's deposition testimony relating to his injuries and his initial and supplemental bills of particulars. No triable issue of fact is raised in opposition. Accordingly, the branch of Pegno's motion which is for summary judgment dismissing all contribution and common-law indemnification claims and cross claims insofar as asserted against it is granted, and such claims and cross claims are hereby severed and dismissed ( see Jamindar v. Uniondale Union Free School Dist., 90 AD3d 612 [2d Dept 2011] ).
.Workers' Compensation Law § 11 prohibits third-party indemnification or contribution claims against employers, except where the employee sustained a “grave injury,” or the claim is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered” ( see Rodrigues v. N & S Bldg. Contrs., Inc., 5 NY3d 427, 429–430 [2005] ). The term “grave injury” is defined in the statute as “only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”
Pegno also moves for dismissal of contractual indemnification claims and cross claims asserted against it by Five Star and Hazen. Concurrently, Five Star is moving for contractual indemnification against Pegno. Five Star's motion is supported by Hazen, which opposes Pegno's motion.
Here, Pegno entered into a Construction Contract Agreement with the City, dated July 10, 2000 (the Pegno contract), which contains an indemnity provision applicable to this project. In particular, Article 7 (rev.9/98) provides, in relevant part, that:
“During the performance and up to the date [of] final acceptance, the Contractor [Pegno] shall be under an absolute obligation to protect the finished and unfinished work against any damage, loss or injury; and, in the event of such damage, loss or injury [it] shall promptly replace or repair such work, whichever the Engineer shall determine to be preferable ...
* * *
If the persons or property of the City or of others sustain loss, damage or injury resulting from the negligence or carelessness of the Contractor [Pegno], ... in [its] performance of this Contract ..., the Contractor shall indemnify and hold the City harmless from any and all claims and judgments for loss[,] damages or injuries and from costs and expenses to which the City may be subjected or which it may suffer or incur by reason thereof.
The provisions of this Article shall not be deemed to create any new right of action in favor of third parties against the Contractor, or the City” (emphasis added).
By its terms, the Article 7 indemnity clause is for the benefit of the City only. This is made clear in the concluding sentence of Article 7 that “[t]he provisions of this Article shall not be deemed to create any new right of action in favor of third parties against the Contractor ...” (emphasis added).
Hazen points out to its own contract with the City in which the City undertook to include in all prime contracts for this project an indemnity provision for the benefit of Hazen (§ 2.0.M.1A). The Pegno contract, however, omits this indemnity provision, and the Court will not read into the Pegno contract an indemnity obligation that is not unmistakably present therein ( see Lopez v. Guei Shun Shiau, 88 AD3d 598 [1st Dept 2011] ).
Five Star and Hazen, however, contend that another provision of the Pegno contract requires that Pegno indemnify them for any claims arising out of Pegno's negligence. Specifically, Five Star and Hazen cite to Article 12 which is included, in identical form, in both the Pegno contract and the Five Star contract. Article 12 (rev .9/98) is significant to this case and deserves to be quoted at length:
“During the progress of the work, other Contractors [
] may be engaged in performing other work or may be awarded other Contracts for additional work on this project. In that event, the Contractor shall coordinate the work to be done hereunder with the work of such other Contractors and the Contractor shall fully cooperate with such other Contractors and carefully fit its own work to that provided under other Contracts as may be directed by the Engineer. The Contractor shall not commit or permit any act which interfere[s] with the performance of work by any other Contractor.
The term “Other Contractors” is defined in item 17 on page 20 as “any Contractor (other than the Contractor) who has a Contract with the City for work on or adjacent to the building or site of the work.”
If the Contractor notifies the Engineer in writing that another Contractor on this project is failing to coordinate his work with the work of this Contract as directed, the Engineer must promptly investigate the charge. If the Engineer finds it to be true, he must promptly issue such directions to the other Contractor with respect thereto as the situation may require. The City shall not, however, be liable for any damages suffered by the Contractor by reason of the other Contractor's failure to promptly comply with the directions so issued by the Engineer or by reason of another Contractor's default in performance, it being understood that the City does not guarantee the responsibility or continued efficiency of any Contractor.
The Contractor shall indemnify and hold the City harmless from any and all claims of judgments for damages and from costs and expenses to which the City may be subjected or which it may suffer or incur by reason of the Contractor's failure to comply with the Engineer's directions promptly; and the Comptroller shall have the right to exercise the powers reserved in Article 23 [Moneys Retained Against Claims] hereof with respect to any claims which may be made for damages due to the Contractor's failure to comply with the Engineer's direction promptly.[
Under Article 23(3):
“If any claim shall be made by any person, firm or corporation (including other Contractors with the City on this project) ... against the Contractor and the City for ... damage claimed to have been caused directly or indirectly by the failure of the Contractor to perform the work in strict accordance with this Contract; the amount of such claim ... may be withheld by the Comptroller, as security for such claim, from any money due hereunder.”
Should the Contractor sustain any damage through any act or omission of any other Contractor having a Contract with the City for the performance of work upon the or of work which may be necessary to be performed for the proper execution of the work to be performed hereunder ..., the Contractor shall have no claim against the City for such damage, but shall have a right to recover such damage from the other Contractor under the provision similar to the following provisions which have been ... inserted in the Contracts with such other Contractors.
Should any other Contractor having ... a Contract with the City for the performance of work upon the site sustain any damage through any act or omission of the Contractor hereunder ..., the Contractor agrees to reimburse such other Contractor for any such damages and to defend at his own expense any suit based upon such claim ...” (emphasis added).
As the Court interprets it, Article 12 serves three purposes: (1) it insulates the City from liability for damages suffered by one contractor due to the acts or omissions of another contractor; (2) it requires contractors to indemnify the City from all claims between them; and (3) it affords the damaged contractor a direct right of recourse and reimbursement against the erring contractor. With respect to the last category, however, Article 12 is silent as to whether a contractor's right of recourse or reimbursement encompasses damages arising from personal injury claims brought against it by an employee of another contractor. Five Star contends that Article 12 constitutes an additional indemnification provision running to the benefit of “other contractors” for any damages caused by the act or omission of Pegno, which, according to Five Star, qualifies as one of the “other contractors” covered by this article. In support, Five Star cites several decisions which have interpreted a nearly identical provision in favor of a broad indemnity. In Rogers v. City of NY (20 Misc.3d 1141[A], 2008 WL 4149806, *3, 2008 N.Y. Slip Op 51820[U] [Sup Ct, Kings County 2008] ), Justice Martin Schneier of this court denied the employer's summary judgment motion to dismiss Hazen's contractual indemnification claim against it, holding that Hazen was an “other contractor” under the employer's contract with the City, and that the “act or omission” language in Article 12 was sufficient to encompass a loss covered by the Workers' Compensation Law.
Subsequently, in Tavella v. Skanska USA, Inc. (28 Misc.3d 885 [Sup Ct, Kings County 2010] ), Justice Wayne P. Saitta of this court noted—albeit in dictum and without citing Rogers—that:
The appeals and cross appeals from, among other things, this decision and order were withdrawn by stipulation ( see Rogers v. City of NY, 2009 N.Y. Slip Op 85253[U] [2d Dept 2009] ).
“It is clear from the language of the prime contract between PEGNO/TULLY and the City that the prime contracts were intended to give other prime contractors the reciprocal right to seek indemnification from each other” ( id. at 891).
The actual holding in Tavella was that, under the terms of the subcontract, the subcontractor for one prime contractor was not bound to indemnify other prime contractors.
The decision in Rogers and the dictum in Tavella to the effect that Article 12 is sufficiently broad to include personal injury claims is not binding on the Court ( see Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664 [2d Dept 1984] ). As the Court does not agree with these decisions, it respectfully declines to follow them. Both Rogers and Tavella relied upon the Court of Appeals' opinion in Rodrigues v. N & S Bldg. Contrs., Inc . (5 NY3d 427 [2005] ) for the proposition that to satisfy the requirements of Workers' Compensation Law § 11, “a written indemnification provision [must] encompass[ ] an agreement to indemnify the person asserting the indemnification claim for the type of loss suffered,” but need not “specify the sites, persons and the types of losses covered” ( id. at 433 [emphasis added] ). Significantly, Rodrigues construed a single indemnification clause. In contrast, the Pegno contract here is more complex, as it contains two—not one—potentially applicable provisions: the first provision is the explicit indemnification clause found in Article 7, which is akin to the indemnification clause that was construed in Rodrigues; and the second provision is the cooperation/reimbursement clause in Article 12, which was not at issue in Rodrigues. Thus, the Rodrigues court did not consider the purpose of the cooperation/reimbursement clause, nor did it consider any overlap between the cooperation/reimbursement clause and the indemnification clause. As a consequence of that necessarily limited analysis performed by the Rodrigues court, the Rogers and Tavella decisions, while following Rodrigues, fail to examine the underlying purpose of the cooperation/reimbursement clause, which is that contractors must coordinate their work and may not permit any act of interference with the work of other contractors. Furthermore, these decisions fail to consider the relation of the cooperation/reimbursement clause to the indemnification clause.
It is well established that indemnity contracts must be strictly construed to avoid reading into them duties which the parties did not intend to be assumed ( see Hooper Assoc., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491 [1989] ). Here, although Article 12 provides that the contractor must “indemnify and hold the City harmless” from certain claims, it fails to use the same “indemnity and hold harmless” language to describe the contractor's rights against other contractors. Instead, it uses the words “right to recover,” “reimbursement,” and “defense” in describing the rights of contractors inter se. In the Court's view, this language is insufficient to support Five Star's or Hazen's contractual indemnity claim against Pegno ( see Southern Erectors, Inc. v. City of NY, 1992 WL 162743, *8 [SD N.Y.1992] [“nothing in Article 12 or any other provision of the City contract provides a right of indemnification to any party other than the City ”] [footnote omitted; emphasis added] ). The fact that, pursuant to Article 12, Pegno agreed to coordinate its work with other contractors and to reimburse and defend other contractors as a result of its act or omission does not demonstrate that Pegno agreed to indemnify every other unnamed contractor, particularly, where, as here, none of the prime contractors are in privity with one another ( accord Samaroo v. Patmos Fifth Real Estate, Inc., 32 Misc.3d 1209[A], 2011 WL 2636257, *28, 2011 N.Y. Slip Op 51217[U] [Sup Ct, Kings County 2011, Silber, J.] ). If the parties intended to cover any of the unnamed prime contractors as potential indemnitees in Article 12 (as the parties expressly did with respect to the City in the same Article 12), they had only to so say so unambiguously ( see Jonathan J. Sweet, Sweet on Construction Industry Contracts: Major AIA Documents, § 18.06, at 804 [“In a separate contractor system, a separate contractor should seek protection under (the indemnification provision) both by being named an indemnitee and by being certain that the separate contractor can claim these contractual rights under (the third-party beneficiary provision).”] ).
Finally, the predicate for the Article 12 liability—that “any damage [be sustained] through any act or omission of the Contractor [Pegno]”—does not specifically include the claims of such contractor's (Pegno's) employees. There is nothing in the record which suggests an intention to include Pegno's employees within the scope of Article 12. Since it cannot be said under the circumstances that indemnification for claims by Pegno's employees was the unmistakable intent of the parties, Pegno is not required to indemnify Five Star or Hazen ( see Vigliarolo v. Sea Crest Constr. Corp., 16 AD3d 409, 410 [2d Dept 2005] ). Thus, Five Star and Hazen may not maintain a claim or cross claim for contractual indemnification against Pegno. Accordingly, the branch of Pegno's motion for dismissal of Five Star's and Hazen's contractual indemnification claims/cross claims is granted, and such claims/cross claims are hereby severed and dismissed. The branch of Five Star's motion for partial summary judgment on its contractual indemnification cross claim against Pegno is denied.
This treatise analyzes AIA Document A201TM—2007, “General Conditions of the Contract for Construction.” The indemnification clause in section 3.18.1 of the General Conditions is similar to Article 7 herein. The third-party beneficiary clause in section 1.1.2 of the General Conditions specifies which entities may enforce the Contract for Construction, but does not include other contractors. Although the 2007 form of the General Conditions was not in effect at the time of plaintiff's accident, its immediate predecessor, the 1997 form, had substantially similar pertinent provisions.
Pegno's Cross Claim Against Five Star
Pegno's Counterclaim Against Hazen
Pegno, in its answer to the second third-party complaint, asserts a cross claim against Five Star as well as a counterclaim against Hazen, in each case, for contribution and common-law indemnification. Dismissal of Pegno's cross claim against Five Star is appropriate because, as noted, Pegno is not liable to Five Star and, similarly, Five Star should not be held liable to Pegno. Accordingly, the branch of Five Star's motion for dismissal of Pegno's cross claim against it is granted, and such cross claim is hereby severed and dismissed. On the other hand, dismissal of Pegno's counterclaim against Hazen is premature, and the branch of Hazen's motion for dismissal of Pegno's counterclaim against it is denied.
Conclusion
Five Star's motion is granted only to the extent that (1) plaintiff's Labor Law 240(1) claim, (2) plaintiff's Labor Law § 241(6) claim as predicated upon Industrial Code §§ 23–1.5, 23–1.15, 23–1.16, and subpart 23–5, (3) the City's contribution cross claim, and (4) Pegno's cross claim, insofar as asserted against Five Star, are severed and dismissed, and the remainder of its motion is denied.
Hazen's motion is granted only to the extent that (1) plaintiff's Labor Law 240(1) claim, (2) plaintiff's Labor Law § 241(6) claim as predicated upon Industrial Code §§ 23–1.5, 23–1.15, 23–1.16, and subpart 23–5, and (3) the City's contribution cross claim, insofar as asserted against Hazen, are severed and dismissed, and the remainder of its motion is denied.
The City's motion is granted only to the extent that (1) plaintiff's Labor Law 240(1) claim, and (2) plaintiff's Labor Law § 200 and common-law negligence claims, insofar as asserted against the City, are severed and dismissed, and the remainder of its motion is denied. In addition, the Court, upon searching the record, dismisses plaintiff's Labor Law § 241(6) claim, as predicated upon Industrial Code §§ 23–1.5, 23–1.15, 23–1.16, and subpart 23–5, insofar as asserted against the City.
Pegno's motion is granted only to the extent that all of Five Star's and Hazen's claims and cross claims insofar as asserted against it are severed and dismissed, and the remainder of its motion is denied. To the extent that the City has asserted against Pegno a claim for contractual indemnification and for breach of contract to obtain insurance, such claim remains unaffected by this decision and order.
Plaintiff's counsel shall serve a copy of this decision and order with notice of entry on defendants and third-party defendants and shall file proof of service with the County Clerk.
This constitutes the Decision and Order of the Court.