Summary
holding "[p]laintiff abandoned the Labor Law § 241 claims that are predicated on violations of other Industrial Code provisions and OSHA regulations cited in his bill of particulars, since he failed to address them in his motion papers or on appeal"
Summary of this case from McRae v. EPS Iron Works, Inc.Opinion
2013-03-19
Jose RODRIGUEZ, et al., Plaintiffs–Respondents, v. DORMITORY AUTHORITY OF the STATE of New York, et al., Defendants–Appellants, Enclos Corp., Defendant–Respondent–Appellant. Enclos Corp., Third–Party Plaintiff–Respondent–Appellant, v. Atlantic Heydt Corp., Third–Party Defendant–Respondent. [And A Second Third–Party Action].
Newman Myers Kreines Gross Harris P.C., New York (Adrienne Yaron of counsel), for appellants. Law Offices of James J. Toomey, New York (Eric P. Tosca of counsel), for respondent-appellant.
Newman Myers Kreines Gross Harris P.C., New York (Adrienne Yaron of counsel), for appellants. Law Offices of James J. Toomey, New York (Eric P. Tosca of counsel), for respondent-appellant.
Feld & Korman, P.C., New York (John G. Korman of counsel), for Jose Rodriguez and Rebecca Rodriguez, respondents.
French & Casey LLP, New York (Susan A. Romano of counsel), for Atlantic Heydt Corp., respondent.
ANDRIAS, J.P., SWEENY, FREEDMAN, FEINMAN, GISCHE, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered July 2, 2012, which, insofar as appealed from as limited by the briefs, denied defendants' motions for summary judgment dismissing the complaint and for summary judgment on their contractual indemnification claims, unanimously modified, on the law, to the extent of dismissing the common-law negligence and Labor Law § 200 claims against defendants Dormitory Authority of the State of New York (DASNY) and Bovis Lend Lease LMB, Inc., and dismissing the § 241(6) claims against defendants insofar as they are predicated on alleged violations of provisions other than 12 NYCRR 23–1.7(e)(2), and otherwise affirmed, without costs.
The court should have granted the motions for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims against DASNY and Bovis. Given that the accident was caused by a dangerous condition on the premises, rather than by the means or methods of plaintiff's work, defendants met their burden by showing that they neither created nor had actual or constructive notice of the alleged dangerous condition ( see Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 9, 919 N.Y.S.2d 129 [1st Dept. 2011] ), namely, a scaffold clamp that had been left on the floor where plaintiff was walking while carrying boxes. Plaintiff's testimony failed to raise an issue of fact, since he merely testified that he had seen similar hazards on the floor on the day of the accident and the day before; there was no testimony indicating how long the specific clamp that caused his fall had been in the location of his accident ( see Canning v. Barneys N.Y., 289 A.D.2d 32, 33, 734 N.Y.S.2d 116 [1st Dept. 2001] ). However, the court properly denied defendant Enclos's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it, since there are issues of fact about whether it created the hazardous condition ( see Murphy v. Columbia Univ., 4 A.D.3d 200, 201, 773 N.Y.S.2d 10 [1st Dept. 2004] ).
The court should have granted summary judgment dismissing the Labor Law § 241(6) claims that are based on alleged violations of Industrial Code provisions other than 12 NYCRR 23–1.7(e)(2). Defendants failed to make a prima facie showing that a violation of Industrial Code (12 NYCRR) § 23–1.7(e)(2) did not cause the accident, since plaintiff testified that scaffold clamps, including the one that caused his accident, were scattered across the working area, causing him to trip and fall ( see Collins v. Switzer Constr. Group, Inc., 69 A.D.3d 407, 892 N.Y.S.2d 94 [1st Dept. 2010] ). Sections 23–2.1(a)(1) and 23–1.7(e)(1) are inapplicable, since plaintiff's testimony established that the accident occurred in an open working area near a passageway, rather than in the passageway itself ( see Waitkus v. Metropolitan Hous. Partners, 50 A.D.3d 260, 260, 854 N.Y.S.2d 388 [1st Dept. 2008]; Dalanna v. City of New York, 308 A.D.2d 400, 401, 764 N.Y.S.2d 429 [1st Dept. 2003] ). Section 23–1.7(d) is also inapplicable, as the accident was not caused by a foreign substance ( see Kowalik v. Lipschutz, 81 A.D.3d 782, 784, 917 N.Y.S.2d 251 [2d Dept. 2011] ). Plaintiff abandoned the Labor Law § 241(6) claims that are predicated on violations of other Industrial Code provisions and OSHA regulations cited in his bill of particulars, since he failed to address them in his motion papers or on appeal ( see Cardenas v. One State St., LLC, 68 A.D.3d 436, 438, 890 N.Y.S.2d 41 [1st Dept. 2009] ). We reject Bovis's argument that it cannot be held liable pursuant to Labor Law § 241(6) because it was a construction manager. The “label of construction manager versus general contractor is not necessarily determinative” (Walls v. Turner Constr. Co., 4 N.Y.3d 861, 864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005] ). Given that Bovis was responsible for planning and coordinating construction activity throughout the project, providing safety supervision of all contractors and subcontractors on the project, and conducting daily safety walkthroughs on the site, an issue of fact exists as to whether it was the functional equivalent of a general contractor so as to hold it liable under § 241(6) ( see id.).
Although the contractual indemnification claims set forth broad obligations for Enclos to indemnify DASNY and Bovis, and for third-party defendant Atlantic Heydt Corp. to indemnify Enclos, and are not limited to showings of negligence on the part of the proposed indemnitors, there are issues of fact regarding the liability of Enclos and Atlantic precluding summary judgment on the claims ( see Francescon v. Gucci Am., Inc., 71 A.D.3d 528, 529, 897 N.Y.S.2d 73 [1st Dept. 2010] ).
We have reviewed defendants' remaining contentions and find them unavailing.