Opinion
Index 006474/2017
07-28-2021
OSCAR RAMOS, Plaintiff, v. GENEVIEVE NICOLE LYNCH and SALT CONSTRUCTION CORP., Defendants. SALT CONSTRUCTION CORP., Third-Party Plaintiff, v. TEBBENS STEEL, LLC, Third-Party Defendants. SALT CONSTRUCTION CORP., Second Third-Party Plaintiff, v. DION/LUIS, INC. and W2 FINISH CARPENTRY, INC., Second Third-Party Defendants, SALT CONSTRUCTION CORP., Third Third-Party Plaintiff, v. BREEZE CONCRETE CORP., Third Third-Party Defendants,
ORESKY &ASSOCIATES, PLLC Attorney for Plaintiff Ramos KAUFMAN DOLOWICH &VOLUCK, LLP Attorney for Defendants Lynch and Salt Construction Corp. CAMACHO MAURO MULHOLLAND, LLP Attorney for Defendant Tebbens Steel, LLC SOBEL PEVZNER, LLC Attorney for Defendant Louis Dion, Inc. GORTON &GORTON LLP Attorney for Defendant W2 Finish Carpentry, Inc. LAW OFFICES OF MARTYN MARTYN SMITH &MURRAY Attorney for Defendant Breeze Concrete.
Unpublished Opinion
MOTION DATE: 3/12/21 (005 &006), 3/31/21 (007 &008), 3/18/21 (009), 3/31/21 (010)
ADJ. DATE: 5/25/21
ORESKY &ASSOCIATES, PLLC Attorney for Plaintiff Ramos
KAUFMAN DOLOWICH &VOLUCK, LLP Attorney for Defendants Lynch and Salt Construction Corp.
CAMACHO MAURO MULHOLLAND, LLP Attorney for Defendant Tebbens Steel, LLC
SOBEL PEVZNER, LLC Attorney for Defendant Louis Dion, Inc.
GORTON &GORTON LLP Attorney for Defendant W2 Finish Carpentry, Inc.
LAW OFFICES OF MARTYN MARTYN SMITH &MURRAY Attorney for Defendant Breeze Concrete.
HON. KATHY G. BERGMANN JUSTICE.
Upon the following papers read on these motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by second third-party defendant Dion/Luis, Inc, dated January 23, 2021; Notice of Motion and supporting papers by second third-party defendant W2 Finish Carpentry Inc., dated February 16, 2021; Notices of Motion and supporting papers by defendant Salt Construction Corp, dated February 25.2021; Notice of Motion and supporting papers by plaintiff, dated February 24, 2021; Notice of Motion and supporting papers by third third-party defendant Breeze Concrete Corp., dated March 1, 2021; Answering Affidavits and supporting papers by second third-party defendant W2 Finish Carpentry Inc., dated March 1, 2021; Answering Affidavits and supporting papers by second third-party defendant Dion/Luis, Inc, dated March 16, 2021; Answering Affidavits and supporting papers by third-party defendant Tebbens Steel, LLC, dated March 18, 2021 and May 3, 2021; Answering Affidavits and supporting papers by defendant Salt Construction Corp, dated April 20, 2021; Answering Affidavits and supporting papers by third third-party defendant Breeze Concrete Corp., dated April 19, 2021; Answering Affidavits and supporting papers by plaintiff, dated May 7, 2021; Replying Affidavits and supporting papers by second third-party defendant W2 Finish Carpentry Inc., dated April 29, 2021; Replying Affidavits and supporting papers by defendant Salt Construction Corp, dated May 21, 2021; Replying Affidavits and supporting papers by plaintiff, dated May 21, 2021; Replying Affidavits and supporting papers by second third-party defendant Dion/Luis, Inc, dated May 24, 2021; Other(and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion (005) by second third-party defendant Dion/Luis, Inc., the motion (006) by second third-party defendant W2 Finish Carpentry, Inc., the motion (007) by defendant Salt Construction Corp., the motion (008) by defendant Salt Construction Corp, j the motion (009) by plaintiff, and the motion (010) by third third-party defendant Breeze Concrete Corp., are consolidated for the purpose of this determination; and it is further .
ORDERED that the motion (005) by second third-party defendant Dion/Luis, Inc. for, inter alia, summary judgment dismissing the third-party complaint and cross claims against it is granted; and it is further
ORDERED that the motion (006) by second third-party defendant W2 Finish Carpentry, Inc. for summary judgment dismissing the third-party complaint and Cross claims against it is granted to the extent set forth herein and is otherwise denied; and it is further j
ORDERED that the motion (007) by defendant Salt Construction Corp., having been superseded by the motion (008) by defendant Salt Construction Corp., is marked withdrawn; and it is further
ORDERED that the motion (008) by defendant Salt Construction Corp, for summary judgment dismissing plaintiffs claims under Labor Law 200, 240 (1) -and 241 (6) and common law negligence, and for summary judgment against Tebbens, Steel, LLC, Dion/Luis, . Inc., W2 Finish Carpentry, Inc. and Breeze Concrete Corp, on its claims for common law and contractual indemnification is denied; and it is further
ORDERED that the motion (009) by plaintiff for partial summary judgment against Salt Construction Corp, on his claims under Labor Law §§ 240 (1) and 241 (6) is granted; and it is further
ORDERED that the motion(010) by third third-party defendant Breeze Concrete Corp, for summary judgment dismissing plaintiff's claims, and the third-party claims against it, is denied.
Plaintiff commenced this action for alleged injuries Arising from an accident which occurred on March 31, 2016 at 72 Ram Island Drivel Shelter Island, New York. It is undisputed that Salt Construction Corp. ("Salt") was the general contractor for a project entailing the construction/renovation of two residential structures at the subject premises. The accident allegedly occurred while plaintiff was performing work for third-party defendant Tebbens Steel, LLC ("Tebbens"), the contractor hired to install structural steel at the subject property. In his complaint, plaintiff asserts claims against Salt for violations of Labor Law §§ 240, 241, 200, and common law negligence. Salt subsequently commenced a third-party action against Tebbens, and a second third-party action against Louis Dion, Inc. s/h/a Dion/Luis, Inc. ("Dion"), and W2 Finish Carpentry, Inc. ("W2"), the carpentry contractors which performed work at the subject premises. A third third-party action Was commenced by Salt against Breeze Concrete Corp., the concrete contractor which performed work at the premises. Each of the third-party actions asserts claims for common law and contractual indemnification and contribution, as well as for breach of contract to procure insurance.
Salt moves for summary judgment requesting dismissal of plaintiffs claims against it, and for an order granting: it summary judgment; with respect to its. claims for common law and contractual indemnification against Tebbens, Dion, ;W2 and Breeze. In support of its motion, Salt has submitted, inter alia, copies of the pleadings, the parties' deposition transcripts, its construction agreement with the homeowners of the subject premises, and its agreements with Dion, W2, Tebbens and Breeze.
Plaintiff testified that, while working on the installation of steel beams at the premises, he was asked by his foreman to move seven to eight loose boards from the back patio, so that a ladder could be placed in the area. He further testified that, after moving the last board from the surface of the patio, he fell approximately nine to twelve feet to the bottom of an opening, which had been covered by the unmarked, unsecured pieces of wood. Robert Plumb, the president and owner of Salt, testified that, pursuant to the construction agreement he entered with? Robert Lynch and Genevieve Lynch, the owners of the premises, he agreed to be responsible for initiating, maintaining and supervising all safety precautions and programs in connection With the performance of the contract. He further testified that he visited the job site approximately four times each week to observe the progress of the work, and that lie had the ability to stop any Work which he felt was being performed unsafely. Plumb stated that Breeze had created the 30 by 30 inch opening, for exterior access to a pool equipment room in the basement of the premises, when it poured the concrete surface of the patio. Plumb further testified that, the opening was covered by a piece of green plywood, to which 2 x 4s had been attached so that it would fit securely in the opening, until a hinged Bilco cover was later installed. Plumb stated that he inspected the green plywood cover over the opening on two occasions, approximately one month prior to plaintiff's accident. He testified that the cover could not be pushed sideways off of the opening, but that it could be lifted, although it would "probably" require a crowbar to do so. Jose Mendonco, the owner of Breeze, testified that Breeze created the subject opening on February 26, 2016, when it poured the concrete for the patio slab, and that he himself created the temporary plywood covering for the Opening. Mendonco testified that he nailed apiece of green plywood to the wood forms which had been use ti to -frame the opening, as it was his responsibility to "protect the hole" before he left the job site that day Plaintiff's foreman, Recep Kocan, testified that, on the date of the accident, he was working with plaintiff and another employee of Tebbens installing cross beams between the steel columns on the patio. He stated that he instructed plaintiff to clean some pieces of ply wood from the area where the ladder they were using was to be placed. Kocan testified that he speaks Turkish and plaintiff speaks Spanish, but that they communicate in English, which plaintiff understands "a little bit." Kocan observed plaintiff begin to move the pieces of plywood from the area, and then turned away to begin welding. When he stopped welding, he observed that plaintiff had fallen to the bottom of a hole in the concrete. Kocan testified that he was unaware of the opening prior to plaintiff's accident because it was Covered by the sheets of plywood. He further testified that he had instructed plaintiff not to move the green piece of plywood at the bottom of the other sheets of plywood because "it didn't belong to them." Kocan stated that plaintiff smiled at him after he instructed him not to move the green piece of plywood, but that he did not know if plaintiff understood what he was saying. Kocan further testified that the plywood was not secured to the opening.
The branch of Salt's motion requesting dismissal of plaintiff's claims against it under Labor Law § 240 (1) is denied. "Labor Law § 240 (1) imposes absolute] liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards. Breach of the statutory duty must be the proximate cause of the injury. The statute is to be interpreted liberally to accomplish its purpose" (Striegel v Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, 977, 768 N.Y.S.2d 727 [2003]; see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509. 577 N.Y.S.2d 219 [1991]; Ortiz v 164 Atlantic Ave., LLC, 77 A.D.3d 807. 909 N.Y.S.2d 745 [2d Dept 2010]). Here, it is undisputed that plaintiff fell into the unmarked hole after moving the temporary plywood cover from the opening. Regardless of whether the cover was unsecured, or inadequately secured, it did not provide proper protection to plaintiff. As such, the evidence submitted in support of (Salt's motion, including the parties' deposition testimony, fails to eliminate issues of fact regarding whether a violation of Labor Law § 240 (1) proximately caused the alleged accident. Moreover, Salt failed to raise a friable issue of fact as to whether plaintiff was a recalcitrant worker, as the evidence I establishes that he was not provided with the necessary safety equipment while working near the unmarked opening on the concrete patio (see Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127 [1993]). Accordingly, the branch of Salt's motion for summary judgment dismissing plaintiff's claims under Labor Law §1240 (1) is denied.
Similarly, Salt has failed to establish prima facie entitlement to summary judgment dismissing plaintiffs claims against it under Labor Law § 241 (6). "Labor Law § 241 (6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Norero v 99-105 Third Avenue Realty, LLC, 96 A.D.3d 727, 727-728, 945 N.Y.S.2d 720 [2d Dept 20 12]). In order to prevail on a cause of action alleging a violation of Labor Law § 241 (6) a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49 [1993]; Norero v 99-105 Third Avenue Realty, LLC, 96 A.D.3d 727, 945 N.Y.S.2d 720). Salt's submissions fail to eliminate issues of fact regarding whether a violation of Industrial Code § 23-1.7 (b) (1) (i), which required a "substantial cover fastened in place" over the opening, was a proximate cause of the alleged accident. Accordingly, Salt's application for summary judgment dismissing plaintiff s claims under Labor Law § 241(6) is denied.
The branches of Salt's motion for summary judgment dismissing plaintiff s claims under Labor Law § 200 and common law negligence are also denied. Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide workers with a safe place to work (see Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168 [1993]; Shaughnessy v Huntington Hosp. Assoc., 147 A.D.3d 994, 47NYS$d 121 [2d Dept 2017]; Quituizaca v Tucchiarone, 115 A.D.3d 924, 982 N.Y.S.2d 524 [2d Dept 2014]). Where a plaintiffs injuries arise from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual of constructive notice hf the dangerous condition (see Mikelatos v Theofilaktidis, 105 A.D.3d 822, 962 N.Y.S.2d 693 [2d Dept 2013]). Here, plaintiffs accident was allegedly caused by the presence of an unmarked and inadequately protected hole at the job site, and the evidence submitted by Salt fails to eliminate issues of fact regarding whether Salt had notice of the dangerous condition. In this regard, Plumb testified that he inspected the green plywood cover over the opening on two occasions approximately one month prior to plaintiffs accident. He further testified that the cover could not be pushed sideways off of the opening, but that it could be lifted from the opening. As Plumb testified that he was aware of the presence of the unmarked, unsecured piece of plywood covering the opening, Salt has failed to establish prima facie entitlement to summary judgment dismissing plaintiff s claims under Labor Law § 200 and common law negligence.
The branch of Salt's motion for summary judgment by its claims against Dion, W2, Tebbens and Breeze for contractual indemnification js denied. Each of those parties entered into agreements with Salt which required them to, inter alia, defend and indemnify Salt from all claims, losses and expenses "arising out of [their] operations performed for [Salt], caused in who e or in part by any act or omission of [them], or anyone directly or indirectly employed by them, or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by [Salt]." It is well established that "a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 A.D.3d 660, 662, 871 N.Y.S.2d 654 [2d Dept 2009]; see McAllister v Constr. Consultants L.I., Inc., 83 A.D.3d 1013, 1 N.Y.S.2d 556 [2d Dept 2011 ]; Reynolds v County of Westchester, 270 A.D.2d 473, 704 N.Y.S.2d 651 [2d Dept 2000]). As discussed above, issues of fact are present regarding whether Salt had notice of the alleged dangerous condition. As Salt has failed to establish, prima facie, its own freedom from negligence, the branch of its motion for summary judgment with respect to its claims for contractual indemnification us denied. j
To the extent that Salt seeks summary judgment oil its third-party common law indemnification claims against Tebbens - plaintiffs employer at the time of the accident- that branch of the motion must be denied, as it is undisputed that plaintiff did not sustain A grave injury (see Flores v Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 795 N.Y.S.2d 491 [2005]). It Is well established that claims for common law indemnification and contribution are statutorily barred against an employer in the absence of a grave injury (see Workers' Compensation Law § 11 . Fleming v Graham, 10 N.Y.3d 296, 857 N.Y.S.2d 8 [2008], Ironshore Indem., Inc. v W&W Glass, LLC, 151 A.D.3d 511, 58 N.Y.S.3d 10 [1st Dept 2017]; Grech v HRC Corp., 150 A.D.3d 829, 54 N.Y.S.3d 433 [2d Dept 2017]).
The branches of Salt's motion for summary' judgment on its claims against Breeze, Dion and W2 for common law indemnification are also denied. "[A] party' cannot obtain common-law indemnification unless it has been held vicariously liable without proof of any negligence or actual supervision on its own part" (McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378, 929 N.Y.S.2d 556 [2011]). As discussed above, issues Of fact are present regarding whether Salt had notice of the alleged dangerous condition. As Salt has failed to establish, prima facie, its own freedom from negligence, the branches of its motion for summary judgment with respect to its claims for common law indemnification are denied (see Mikelatos v Theofilaktidis, 105 A.D.3d 822. 962 N.Y.S.2d 693).
Dion and W2 have each established prima facie entitlement to dismissal of Salt's third-party claims for contractual and common law indemnification and contribution, through the deposition testimony of the parties establishing that plaintiff s claims did not arise out of their work at the subject premises, and that they did not breach any duty to plaintiff which proximately caused his injury (see Mikelatos v Theofilaktidis, 105 A.D.3d 822, 962 N.Y.S.2d 693; Guerra v St. Catherine of Sienna, 79 A.D.3d 808, 913 N.Y.S.2d 709 [2d Dept 2010]). The deposition testimony submitted in support of the motions for summary judgment on behalf of Dion and W2 established that neither Dion nor W2 were working in the area where the accident occurred, nor did they have any role in creating the subject hole or any dangerous condition created by the placement of the unsecured boards in the area. In this regard, Mendonco testified that Breeze created the opening in the concrete slab and that he created the temporary plywood cover. In addition, Kocan testified that the additional pieces of wood covering the opening were left by the Tebbens crane operator. As Salt failed to raise a triable issue of fact in opposition to the motions, its; third-party claims against Dion and W2 for contractual and common law indemnification and contribution are dismissed.
In support of its motion, Dion also submitted evidence that it procured insurance coverage naming Salt as an additional insured, as required by the indemnification agreement it entered with Salt. As Such, Salt's claim against Dion for breach of contract to procure insurance is also dismissed. However, W2 did not submit any evidence in support of its motion establishing that it satisfied its obligation to obtain insurance naming Salt as an additional; insured. Accordingly, the branch of W2's motion for summary judgment dismissing Salt's claim against it for breach of contract is denied.
The branch of Dion's motion for the imposition of sanctions against Salt for its alleged frivolous conduct in this action is denied. Pursuant to Part 130 of the Uniform Rules for Trial Courts (22 NYCRR), a court, in its discretion, may award costs and impose sanctions for frivolous conduct in a civil action or proceeding (Uniform Rules for Trial Cts [22 NYCRR] § 130-1.1 [a]). Conduct is regarded as frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," if "it asserts material factual statements that are false," or if it is undertaken to "delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (Uniform Rules for Trial Cts [22 NYCRR] § 130-1. 1[c]). Dion failed to establish that Salt engaged in frivolous conduct within the meaning of Uniform Rules for Trial Courts (22 NYCRR) § 130-1.1 [c] (see Kaplon-Belo Assoc., Inc. v D'Angelo, 79 A.D.3d 93 T 912 N.Y.S.2d 886 [2d Dept 2010]; Corr v Corr, 46 A.D.3d 736, 849 N.Y.S.2d 284 [2d Dept 2007].
Breeze also moves for summary judgment dismissing the third-party claims against it. As noted above, Breeze entered into an agreement with Salt which required it to, inter alia, defend and indemnify Salt from all claims, losses and expenses "arising out of [Breeze's] operations performed for [Salt], caused in whole or in part by any act or omission of [Breeze], or anyone directly or indirectly employed by them, or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by [Salt]." Mendonco testified that Breeze created the subject opening When it poured the concrete for the patio slab, and that he himself created the temporary plywood covering for the opening. Although Mendonco testified that he nailed the plywood cover to the wooden forms used to frame the opening, Plumb testified that the plywood cover could still be lifted from the opening, and plaintiff testified that he fell after moving the plywood away from the hole. As Breeze has failed to eliminate issues of fact regarding whether any act or omission on its part caused the alleged accident, the branch of its motion for summary judgment with respect to the claims against it for contractual and common law indemnification is denied (see Winegrad v New York Univ. Med. Ctr., 64 N Y2d 851, 487 N.Y.S.2d 316 [1985]).
As to the branch of Breeze's motion seeking dismissal of the claims against it for contribution, apportionment, rather than a shifting of the entire loss through' indemnification, is the proper rule when two or more tortfeasors share responsibility for an injury (see Gunman v Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559.516 N.Y.S.2d 451 [ 1987]; Rogers v Dorchester Assoc., 32 N.Y.2d 553, 347 N.Y.S.2d 22 [1973]). The critical requirement for apportionment by contribution under CPLR article 14 is that the breach of duty by the contributing party must have had a pan in causing or augmenting the injury for which contribution is sought (see DiMarco v New York City Health & Hosps. Corp., 187 A.D.2d 479, 589 N.Y.S.2d 580 [2d Dept 1992]; see also Raquet v Braun, 90 N.Y.2d 177, 659 N.Y.S.2d 237 [1997]; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 N.Y.2d 599, 528 N.Y.S.2d 516 [1988]). As Breeze's submissions fail to eliminate issues of fact regarding whether it breached a duty of care which caused or contributed to the accident, the branch of its motion for summary judgment dismissing the claims against it for contribution is denied (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316), As Breeze did not submit any evidence in support of its motion establishing that it satisfied its obligation to obtain insurance naming Salt as an additional insured, the branch of its motion requesting dismissal of Salt's claim against it for breach of contract is also denied.
Plaintiffs motion for partial summary judgment against Salt is granted. Plaintiff has established prima facie entitlement to summary judgment with respect to his claims against Salt under Labor Law § 240 (1) and Labor Law § 241 (6). Specifically, plaintiff has established, prima facie, that he was not provided with proper protection under Labor Law § 240 (I), that the failure to provide such protection also violated Industrial Code § 23-1.7 [b] [1] [i], which required a "substantial cover fastened in place" over the opening, and that this failure was the proximate; cause of his alleged injuries (see Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., 104 A.D.3d 446, 449-450, 961 N.Y.S.2d 91 ; Norero v 99-105 Third Avenue Realty, LLC, 96 A.D.3d 727, 945 N.Y.S.2d 720; see also Valensisi v Greens at Half Hollow, 33 A.D.3d 693, 823 N.Y.S.2d 416 [2d Dept2006]; Brandl v Ram Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511 [2d Dept 2004]). In opposition, Salt failed to raise a triable issue of fact (see Valdez v Turner Constr. Co., 171 A.D.3d 836, 98 N.Y.S.3d 79 [2d Dept £019]). Contrary to gait's contention, "where, as here, a violation of Labor Law § 240 (I) is a proximate cause of an accident, the worker's conduct cannot be deemed solely to blame for it" (Valensisi v Greens at Half Hollow, 33 A.D.3d at 696, 823 N.Y.S.2d 416). Accordingly, plaintiff s application for summary judgment against Salt with respect to his claims under Labor Law § § 240 (1) and 241 (6) is granted.