Opinion
No. 267762009.
2011-05-10
Carlos Vidal QUINTANILLA–FLORES v. SIMONE DEVELOPMENT COMPANY, LLC, et al.
The record reveals that the ladder was unsecured and was not held in place by a person stationed at the foot of such ladder. In opposing this branch of plaintiff's motion for summary judgment and moving to dismiss this claim, defendants failed to negate the applicability of 12 NYCRR 23–1.21(b)(4)(iv) as a predicate for the plaintiff's cause of action for damages for violation of Labor Law § 241(6) ( see Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d 173 [2004] ).
ROBERT J. McDONALD, J.
The following papers numbered 1 to 31 read on this motion by Carlos Vidal Quintanilla–Flores for summary judgment in his favor on his claims pursuant to Labor Law §§ 240(1) and 241(6), as against Swalm Street Realty, LLC (Swalm), and East Coast Metalizing & Coating Systems, Inc. (East Coast); cross motion by Simone Development Company, LLC (Simone), and Swalm to dismiss plaintiff's claims pursuant to Labor Law §§ 200, 240(1) and 241(6), and for summary judgment on their claims for contractual indemnification from East Coast; and cross motion by East Coast to dismiss plaintiff's claims pursuant to Labor Law § 240(1).
+-------------------------------------------------------+ ¦Papers ¦Numbered ¦ +--------------------------------------------+----------¦ ¦Notice of Motion—Affidavits—Exhibits ¦1–6 ¦ +--------------------------------------------+----------¦ ¦Notices of Cross Motions—Affidavits—Exhibits¦7–15 ¦ +--------------------------------------------+----------¦ ¦Answering Affidavits—Exhibits ¦16–18 ¦ +--------------------------------------------+----------¦ ¦Reply Affidavits ¦19–29 ¦ +--------------------------------------------+----------¦ ¦Other ¦30–31 ¦ +-------------------------------------------------------+
Upon the foregoing papers it is ordered that the motion and cross motions are decided as follows:
Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on March 30, 2009, when he fell from a ladder that slid across the floor and to the ground. Plaintiff was employed by Meyer Mechanical, a HVAC installation company, on the date of the accident. Swalm was the owner of the property where the accident occurred. East Coast was the general contractor for the construction work, and rented the property where the accident occurred.
In the verified complaint, plaintiff alleges violations of Labor Law §§ 200, 240(1), and 241(6). Plaintiff moves for summary judgment in his favor on his Labor Law §§ 240(1) and 241(6) claims. Defendants Simone and Swalm cross move to dismiss plaintiff's claims pursuant to Labor Law §§ 200 and 240(1), and for summary judgment on their claims for contractual indemnification from East Coast. Finally, East Coast cross-moves to dismiss plaintiff's claims pursuant to Labor Law § 240(1). The motion and cross motions are opposed by the respective parties. Facts
While performing work at 113 Rushmore Street, in Westbury, New York, plaintiff was provided with a 24–foot extension ladder. The ladder was owned by East Coast. This ladder was ultimately positioned against duct work in the building. The plaintiff ascended approximately ten rungs of the ladder. As plaintiff attempted to descend one step down the ladder, the ladder slipped. Plaintiff testified that “all I remember, it slid from underneath me. The next thing I know I was on the floor.” Plaintiff was approximately 13 feet from the ground when the ladder slipped. The ladder was unsecured and no safety harnesses or safety belts had been provided Labor Law § 240(1)
Labor Law § 240(1) requires owners and contractors to provide workers with appropriate safety devices to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object” (Ross v. Curtis–Palmer Hydro–Elec. Co ., 81 N.Y.2d 494 [1993] ).Labor Law § 240(1), was enacted to provide absolute liability for construction activities involving a significant risk due to elevation. “To establish liability under Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries” (Reinoso v. Ornstein Layton Mgt., Inc., 19 AD3d 678, 678 [2005];Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 NY3d 280 [2003] ). Liability is contingent upon the existence of a hazard contemplated in the statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259 [2001] ).
Evidence that a worker's fall was caused by the movement or slipping away of an unsecured ladder constitutes prima facie proof of a Labor Law § 240(1) violation ( see e.g. Chlap v. 43rd St.-Second Ave. Corp., 18 AD3d 598 [2005];Loreto v. 376 St. Johns Condominium, Inc., 15 AD3d 454 [2005];Sztachanski v. Morse Diesel Intl., Inc., 9 AD3d 457 [2004];Peter v. Nisseli Realty Co., 300 A.D.2d 289 [2002];Madden v. Trustees of Duryea Presbyt. Church, 210 A.D.2d 382 [1994] ). Since plaintiff testified that he fell when an unsecured ladder slipped out from under him, plaintiff has demonstrated that he is entitled to summary judgment under Labor Law § 240(1). Thus, the burden shifts to defendant to demonstrate the existence of an issue of material fact ( see e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ).
Defendant does not submit any evidence disputing plaintiff's contention that the ladder was unsecured or that it slipped out from underneath him. Instead, defendant argues that the accident occurred during an inspection and prior to the commencement of an enumerated activity. In asserting that the work plaintiff was performing falls outside of section 240, defendant relies principally on Martinez v.. City of New York (93 N.Y.2d 322 [1999] ). In that case, an inspector suffered an injury while checking for asbestos in schools. The inspection was the prelude to an asbestos removal project. The purpose of the examination was to determine whether conditions warranted removal work, and inspection was to end before any asbestos removal would begin. The City employed one contractor to carry out the inspection and another to do the removal. The Court of Appeals held that the “merely investigatory” inspection phase fell outside section 240(1) ( id. at 326). The Court emphasized that the separate, sequential phases involved different employees working for different contractors. Under such circumstances, the Court held that the inspections too remote from any covered work to fall within the statute's ambit.
Unlike Martinez, the work here did not fall into a separate phase easily distinguishable from other parts of the larger construction project. Plaintiff's work was not in anticipation of Meyer's work, nor did it take place after the work was done. Plaintiff was in his second week of employment with Meyer when the accident occurred. Plaintiff's work was ongoing and contemporaneous with the other work that formed part of a single contract. Moreover, plaintiff worked for a company that was carrying out a contract requiring construction and alteration—activities covered by section 240(1). This contrasts with the asbestos inspector in Martinez, who did not work for the company that would actually remove the asbestos. This is also very different from an inspection conducted by someone carrying a clipboard while surveying a possible construction site long before a contractor puts a spade in the ground. Here based upon an affidavit from Meyer's construction manager, Jose Flores Ramirez, on the date in question Meyers was installing new duct work at the premises. Prior to the accident, Meyers' employees had used a ladder to access the roof to start drilling into the ceiling and through the roof to determine where the roof needed to be cut out for the installation of an exhaust fan. After drilling through the ceiling, Ramirez came down from the ladder because he and another employee were then going to the roof to assist other employees with cutting of the roof to install the exhaust fan. After drilling into the ceiling, Ramirez left the drill on top of the duct near the ceiling. Since the drill was needed for work on the roof, plaintiff went up the ladder to get the drill. While on the ladder, the ladder slip across the floor and plaintiff fell. On that day, Ramirez avers, Meyers had been working on the construction project for almost an hour. Under the facts of this case, plaintiff enjoyed the protection of section 240(1). Accordingly, the branch of plaintiff's motion which is for summary judgment on his claim pursuant to Labor Law § 240(1), is granted, and the cross motion to dismiss plaintiff's claim under § 240(1), is denied. Labor Law § 241(6)
In order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals ( Id. at 502; Ares v. State, 80 N.Y.2d 959 [1992];see also Adams v. Glass Fab, 212 A.D.2d 972 [1995] ).
Here, plaintiff alleges, inter alia, violations of Industrial Code 12 NYCRR 23–1.21(b)(4)(iv), as a predicate. In the first instance, the court notes that this provision is sufficiently specific so as to support a Labor Law § 241(6) cause of action (Vargas v. New York City Tr. Auth., 60 AD3d 438 [2009];see Kun Yong Ke v. Oversea Chinese Mission, Inc., 49 AD3d 508 [2008] ).
Industrial Code § 23–1.21(b)(4)(iv) discusses “general requirements” and “installation and use” for ladders as follows:
Installation and use.
(iv)When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.
The record reveals that the ladder was unsecured and was not held in place by a person stationed at the foot of such ladder. In opposing this branch of plaintiff's motion for summary judgment and moving to dismiss this claim, defendants failed to negate the applicability of 12 NYCRR 23–1.21(b)(4)(iv) as a predicate for the plaintiff's cause of action for damages for violation of Labor Law § 241(6) ( see Montalvo v. J. Petrocelli Constr., Inc., 8 AD3d 173 [2004] ).
Once again, defendants contend that plaintiff is not within the class of workers intended to be protected by Labor Law § 241(6). For reasons noted above, this argument fails. Therefore, the branch of plaintiff's motion which seeks summary judgment on his claim pursuant Labor Law § 241(6), is granted, and the branch of defendants' cross motion which seeks to dismiss this claim is denied. Labor Law § 200
Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty “is that the party charged with that responsibility have the authority to control the activity bringing about the injury” (Russin v. Picciano & Son, 54 N.Y.2d 311, 317 [1981] ). Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v. Stout, 80 N.Y.2d 290 [1992] ). To recover under section 200, the injured worker must show that the owner-Swalm-negligently breached its duty to the worker causing the worker's injuries and that the owner exercised supervisory control over the worker or the work he performed ( id.).
Here, the record reveals that Swalm, as owner, leased the premises to East Coast and that East Coast thereafter hired plaintiff's employer, Meyer. Swalm's property manager, Mr. Mejias, testified that he did not have anything to do with the work performed by East Coast; nor did he direct any employee of East Coast or any other contractor. Indeed, Mejias testified, he was not even at the site when Meyer was working and Mejias never saw the work that Meyer was performing. As there is no evidence that Swalm exercised supervisory control over the operation, the branches of the motion which seek to dismiss plaintiff's claims pursuant to Labor Law § 200 and under the common law, insofar as asserted against Swalm, are granted. Contractual Indemnification
“Where an entity is held strictly liable based solely on its status as owner of the premises pursuant to Labor Law § 240(1), as is here the case with respect to Swalm and Simone, the owner(s) are entitled to contractual indemnification where such has been agreed to between the parties” (Crimi v. Neves Associates, 306 A.D.2d 152, 153 [2003],citing Velez v. Tishman Foley Partners, 245 A.D.2d 155, 156 [1997] ). The right to contractual indemnification depends upon the specific language of the contract (Kader v. City of New York, 16 AD3d 461 [2005] ). Here, Swalm entered into a written lease agreement with East Coast prior to the date of plaintiff's accident. Pursuant to the lease, East Coast agreed to indemnify and hold Swalm harmless from, inter alia, any claims, loss, demands and causes of action arising out of “any work” done by East Coast or any negligence of East Coast or any agent, contractor, employee, licensee or invitee of East Coast at the subject premises. Furthermore, the lease also required East Coast to obtain and maintain insurance on Swalm's behalf. Under the terms of the contract, East Coast was required to procure insurance in certain amounts and to name Swalm as an additional insured on such policy.
Here, it is undisputed that Swalm and East Coast entered into a lease agreement which required East Coast to defend, indemnify, procure insurance for and pay attorneys fees to Swalm in the event a person was injured on the premises. In opposition to Swalms' prima facie showing, East Coast contends that (1) the premises noted in the lease is different from the premises where the accident occurred and (2) the indemnification clause in the lease is unenforceable. Neither of these arguments are supported by either prevailing case law or the facts presented in the record.
In support of the motion, Swalm and Simone submitted the affidavit of Eric Mejias, the property manager, who states that the two addresses in question are for the exact same building. Moreover, Mejias testified at his examination before trial, that the premises of 110 Swalm Avenue, Westbury, New York, and 113 Rushmore Street, Westbury, New York are in fact the same building. In addition, the defendants submitted a survey prepared of the subject property. The survey indicates that there is one building which abuts both Swalm Avenue and Rushmore Street and that the building has two addresses: 110 Swalm Avenue and 113 Rushmore Street. The lease refers to 110 Swalm Avenue while plaintiff's complaint and the bill of particulars reference 113 Rushmore Street. Therefore, there appears to be no merit to the contention that the lease references a different property.
East Coast's contention that the indemnification provision is unenforceable because Swalm is seeking to be indemnified for its own negligence is belied by both the lease itself and the sworn deposition testimony of its own witness. Specifically, paragraph 60(e), provides that the tenant (East Coast) must indemnify the landlord (Swalm) for any accident, injury or damage to any person occurring in the demised premises “ unless resulting from the active or gross negligence of the landlord (Swalm).” In light of this clear, plain and unambiguous language, it cannot be said that Swalm is seeking to be indemnified for its own negligence.
East Coast also argues that the indemnification clause is unenforceable because Swalm was negligent. However, East Coast does not indicate what the alleged negligence consisted of. East Coast's own witness at examination before trial testified that Swalm maintained no presence at the work site and didn't even see what work was going on. Emmanuel Voulgarakis (East Coast's witness) further testified that from the time plaintiff's employer arrived on the site, nobody from Swalm or Simone was even present, much less controlled or directed the work.
In opposition to this branch of the cross motion, East Coast cites the testimony of Eric Mejias who testified on behalf of Swalm and Simone and stated that he “may” have had the authority to stop work at the premises. Plaintiffs' reliance upon Swalm's general supervisory duties is misplaced, as such duties, in the absence of actual authority to control the activity bringing about the injury, will not suffice to hold an owner liable ( see Quilliams v. Half Hollow Hills School District, 67 AD3d 763 [2009] ). An owner or contractor's retention of general supervisory authority, presence at a work site, authority to enforce safety standards, or coordination of the work are insufficient to establish the type of control and supervision which precludes enforcement of an indemnification agreement (Biance v. Columbia Washington Ventures, 12 AD3d 926 [2004];Reilly v. Newireen Assocs., 303 A.D.2d 214 [2003] ). Rather, the owner or general contractor must have actual authority to direct and control the methods used in carrying out the work that caused the accident. Here, it is clear that the accident was not caused by any negligence on Swalm's part.
Finally, it is well settled that an owner or general contractor held vicariously liable under Labor Law § 240 is entitled to full indemnification from the actively negligent subcontractor so long as the owner can show that it did not direct, control, or supervise the work of the subcontractor (see Kelly v. Diesel Constr. Div., 35 N.Y.2d 1 [1974];Lopez v. 36–2nd J Corp., 211 A.D.2d 667 [1995];Richardson v. Matarese, 206 A.D.2d 354 [1994];McNair v. Morris Ave. Assocs., 203 A.D.2d 433, 434;Edlin v. Glinsky, 154 A.D.2d 648 [1989] ). Here, the owners demonstrated that they did not direct, control, or supervise the worksite at any time. Plaintiff failed to raise any question of fact regarding possible negligence of the owners and therefore cannot defeat their cross motion for summary judgment on the issue of common-law indemnification.
Accordingly, the branch of the cross motion which seeks summary judgment on its claims for common-law indemnification is granted. Conclusion
The branch of plaintiff's motion which is for summary judgment on his claim pursuant to Labor Law §§ 240(1) and 241(6), are granted as noted above. The branches of the cross motion by Swalm and Simone which seek to dismiss plaintiff's claims pursuant to Labor Law §§ 200 and 240(1), and for summary judgment on their claims for contractual indemnification from East Coast is granted. The branch of the cross motion by Swalm and Simone which seeks to dismiss plaintiff's claim pursuant to Labor Law § 241(6), is denied. The cross motion by East Coast to dismiss plaintiff's claim under § 240(1), is denied.