Opinion
7642/06.
Decided September 10, 2008.
THE COCHRAN FIRM, NEW YORK, NEW YORK, Attorneys for the Plaintiff.
CARTAFALSA, SLATTERY, TURPIN LENOFF, NEW YORK, NEW YORK, Attorneys for Defendant The City of NY and Third Party Defendants John P.Picone, Inc., James Mccullagh Co., Inc. and Picone/Mccullagh, a joint venture s/h/a. Picone-Mccullagh, a joint venture.
LAWRENCE, WORDEN RAINIS, P.C., MELVILLE, NEW YORK, ATTN: MICHAEL MASTROCINQUE, Attorneys for Defendants/Third Party Plaintiffs Hazen Sawyer and Malcolmpirnie s/h/a Hazen Sawyer and Malcom Pernie, a joint venture.
FABIANI COHEN HALL, LLP, NEW YORK, NEW YORK, ATTN: STEPHEN M. COHEN, ESQ., Attorneys for Third-Party Defendants Allied North America and Tams/Earth Tech and Allied North, America/Joint Venture s/h/a Allied, North America, individually and as a Joint venture known as Tams/Earth Tech and Allied North America, a joint venture.
HACK, PIRO, O'DAY, MERKLINGER, WALLACE McKENNA, P.A., NEW YORK, NEW YORK, Attorneys for Third-Party Defendant Tams/Earth Tech.
This is an action for personal injury sustained by plaintiff Michael Rogers ("Rogers") on October 5, 2005 at a construction project at the Newtown Creek Water Processing Facility ("the project") owned by the New York City Department of Environmental Protection ("DEP"). Hazen Sawyer P.C. and Malcolm Pirnie, Inc., a Joint Venture ("Hazen/Pirnie"), was the construction manager at the Newtown Creek Project.
At the time of the injury, plaintiff was standing on the ground, assisting co-workers who were working on a scaffold. Plaintiff was injured when he was struck by a metal scaffold plank that was dropped from above by a fellow Picone-McCullagh employee.
Defendants/third-party defendants TAMS/EarthTech, Inc., and Allied North America, individually and as a Joint Venture known as TAMS/Earth Tech and Allied North America, a Joint Venture (collectively "TAMS") move pursuant to CPLR 3212(a) for summary judgment dismissing the plaintiff's complaint, the third-party complaint and all cross-claims and all counterclaims asserted against them. TAMS/EarthTech, Inc. also moves by separate motion for the same relief. In light of the fact that the TAMS/EarthTech, Inc., motion is duplicative, it is deemed withdrawn. Picone-McCullagh cross-moves pursuant to CPLR § 3212 for summary judgement dismissing the third-party claim asserted against it by Hazen/Pirnie. Plaintiff cross-moves to strike the defendants' answers and for preclusion.
Summary Judgment
Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact. ( Kolivas v Kirch, 14 AD2d 493 [2nd Dept. 2005]) "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." ( Celardo v Bell 222 AD2d 547 [2nd Dept. 1995])
Tams' Motion for Summary Judgment
On February 26, 2004 TAMS entered into a written contract with DEP to provide DEP with occupational safety auditing services at DEP capitol construction projects including the Newtown Creek Project. The contract delineated the specific duties and responsibilities of TAMS at the Project. A TAMS employee would randomly visit sites, including the Newtown Creek Project, to audit for compliance with all federal, state, city and DEP occupational safety regulations. If any unsafe work practices or unsafe conditions were observed they would be recorded and discussed with DEP and Hazen/Pirnie.
Originally, the plaintiff commenced an action against the City of New York ("CITY") and Hazen/Pirnie alleging negligence and violations of Labor Law §§ 200, 240(1) and 241(6). Thereafter, Hazen/Pirnie brought a third-party action against TAMS alleging claims for contribution, common-law and contractual indemnification and breach of contract.
Following the commencement of the third-party action, the plaintiff served an amended complaint naming TAMS as direct defendants, and claiming that they were negligent and had violated Labor Law §§ 200,240(1), and 241(6).
The Court finds that TAMS has established its entitlement to summary judgment by showing that it did not have the authority to control and supervise the work because it had neither the authority to enforce the provisions of the contracts entered into by the owner with Hazin/Pirnie, nor the authority to stop the work in the event that an unsafe condition or unsafe work practice came to light ( Borbeck v. Hercules Const. Corp. , 48 AD3d 498 [2d Dept 2008]). The movants argue that TAMS concession that it would ""potentially stop the work, and/or remove an individual from harm . . . if an imminent danger of life-threatening situation was observed," is sufficient to create an issue of fact. The Court finds that in such a situation, TAMS would be acting in excess of its contractual obligations. TAMS willingness to act as a good Samaritan is insufficient to give rise to liability. Accordingly, TAMS' motion for summary judgment is granted.
Picone-McCullagh's Cross-motion For Summary Judgment
Picone-McCullagh moves for summary judgment on the third party action commenced by Hazen/Pirnie. The third-party complaint alleges causes of action for indemnification and contribution.
Picone-McCullagh argues that it is entitled to summary judgment pursuant to section 11 of the Workers Compensation Law which states, in relevant part:
"The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom . . . For purposes of this section the terms "indemnity" and "contribution" shall not include a claim or cause of action for contribution or indemnification 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."
Picone-McCullagh's contract with the City states:
"Should the Contractor [Picone/McCullagh] 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 site or of work which may be necessary to be performed for the proper execution of the work to be performed hereunder, or through any act or omission of a subcontractor of such Contract, 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 provisions similar to the following provisions which have been or will be inserted in the Contracts with such other Contractors.
. . .
Should any other Contractor having or who shall hereafter have 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 or through any act or omission of any subcontractor of the Contractor, the Contractor agrees to reimburse such other contractor for all such damages and to defend at his own expense any suit based upon such claim and if any judgment or claims against the City shall be allowed, the Contractor shall pay or satisfy such judgment or claim and pay all costs and expenses in connection therewith and shall pay or satisfy such judgment or claim and pay all costs and expenses in connection therewith and shall indemnity and hold the City Harmless from all such claims."
The Court of Appeals has ruled that "So long as a written indemnification provision encompasses an agreement to indemnify the person asserting the indemnification claim for the type of loss suffered, it meets the requirements of [section 11 of the Workers' Compensation Law]" ( Rodrigues v. N S Building Contractors, Inc. , 5 NY3d 427 , 433). The Court finds that Hazen/Pirnie is an "other contractor," covered by Picone-McCullagh's contract with the City. In addition, the "act or omission" language is sufficient to cover a loss pursuant to the Workers' Compensation Law (see, O'Connor v. William Metrose Ltd., Builder/Developer , 38 AD3d 1207 [4d Dept 2007]).
Accordingly, Picone-McCullagh's motion for summary judgment is denied.
Plaintiff's Cross-motion to Strike Answers And for Preclusion
The drastic remedy of striking a pleading and a preclusion of a party pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the party is shown to be willful and contumacious. ( Russo v Tolchin , 35 AD3d 431 [2d Dept 2006]). Here the collective responses and efforts undertaken by defendants to provide substantive and responsive document discovery in response to plaintiff's demands is quite evident and in addition, defendants have appeared for depositions. Furthermore, plaintiff avers that he, "would welcome an opportunity to resolve all disclosure issues at a conference." The parties are, therefore, urged to cooperate to expeditiously complete all outstanding discovery.
Accordingly, plaintiff's cross motion to dismiss defendant's answers and for preclusion is denied without prejudice.
Conclusion
In sum, the motion by TAMS/EarthTech, Inc. is deemed withdrawn. The motion by TAMS/EarthTech, Inc., and Allied North America, individually and as a Joint Venture known as TAMS/Earth Tech and Allied North America, a Joint Venture is granted and the case is dismissed against those defendants. Picone-McCullagh's cross-motion is denied. Plaintiff's cross-motion is denied without prejudice.
This constitutes the decision and order of the court.