Opinion
Index No. 156072/2013 590168/2014 Motion Seq. No. 008
01-25-2024
DOMENICK ROSSI, Plaintiff, v. DOKA USA, LTD., WORLD TRADE CENTER PROPERTIES, LLC., 4 WORLD TRADE CENTER, LLC., SILVERSTEIN PROPERTIES, INC., TISHMAN CONSTRUCTION CORPORATION, LESLIE E. ROBERTSON ASSOCIATES, R.L.L.P., Defendant. DOKA USA, LTD. Plaintiff, v. ROGER &SONS CONCRETE, INC. Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. SUZANNE J. ADAMS Justice
The following e-filed documents, listed by NYSCEF document number (Motion 008) 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401,402, 403, 404, 405, 406, 407, 408, 409, 410, 412, 480, 481,482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 521, 522, 523, 524, 525, 526, 529, 530, 534, 535, 541 were read on this motion to/for _JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ordered that the motion of defendants WORLD TRADE CENTER PROPERTIES LLC, i/s/h/a WORLD TRADE CENTER PROPERTIES, LLC. ("WTCP"), 4 WORLD TRADE CENTER LLC, i/s/h/a 4 WORLD TRADE CENTER, LLC. ("4WTC"), SILVERSTEIN PROPERTIES, INC., TISHMAN CONSTRUCTION CORPORATION, LESLIE E. ROBERTSON ASSOCIATES, R.L.L.P. ("LERA") (collectively, the "WTC Defendants"), and third-party defendant ROGER &SONS CONCRETE, INC. ("R&S") is granted in part as to LERA only, as discussed hereinbelow; and the cross-motion of defendant/third-party plaintiff DOKA USA, LTD. ("Doka") is denied. In a separate motion sequence (sequence 007), plaintiff moves, and the WTC Defendants, R&S, and Doka cross-move, for certain summary relief, which motion and cross-motions are being decided separately and concurrently with the instant motion and cross-motion. Reference is made to the decision and order in motion sequence 007 for the parties' relationships and the discussion of the incident giving rise to this action. In the instant motion sequence, the WTC Defendants move pursuant to CPLR 3212 to (1) dismiss plaintiffs claims sounding in Labor Law §§ 200 and 241(6), common law negligence, and strict liability; (2) to dismiss Doka's cross-claims for contractual and common law indemnification, contribution, and breach of contract; and (3) for an award of conditional common law indemnity against Doka; and R&S moves pursuant to CPLR 3212 to dismiss Doka's third-party claims. Plaintiff opposes the motion. Doka opposes the motion and cross-moves pursuant to CPLR 3212 to dismiss all cross-claims against it and for an award of conditional common law indemnity against its co-defendants, and for summary judgment on its third-party action against R&S. The WTC Defendants and R&S oppose the cross-motion. The court notes that defendants' motion for summary judgment is deemed timely pursuant to the toll of statutory deadlines imposed by the governor's executive orders during the pandemic. Defendants' involvement in other aspects of this litigation during the excluded time period does not constitute a waiver of the tolling benefit of the emergency orders.
It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986) (citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)). In addition, the party opposing a motion for summary judgment is entitled to all reasonable inferences most favorable to it. Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521 (1st Dep't 1989). Summary judgment will only be granted if there are no genuine, triable issues of fact. Assaf, 153 A.D.2d at 522. Apart from the dismissal of LERA from this action, the record before the court requires the denial of the instant motion and cross-motion, as significant factual issues exist.
First, defendants WTCP and SILVERSTEIN assert that the Labor Law §241(6) and §200 claims must be dismissed as against them because they were not owners of the construction site at the time of the disputed incident. They proffer the Affidavit of Jonathan Knipe, Executive Vice President of Silverstein Properties LLC, successor by merger to SILVERSTEIN, attesting that WTCP was the 100% owner of 4WTC and that 4WTC held a 99-year lease for the building under construction. Knipe further attested that SILVERSTEIN was "affiliated" with WTCP and 4WTC without offering any explanation of the nature of the affiliation. Based on the evidence presented, WTCP and SILVERSTEIN fail to establish their entitlement to summary judgment as a matter of law and this branch of the WTC Defendants' motion is denied.
WTCP, 4WTC, SILVERSTEIN, and TISHMAN also move for summary judgment dismissing the Labor Law § 200 and common law negligence claims. Labor Law § 200 codifies the common law duty imposed on owners and general contractors to provide construction site workers with a safe place to work. Comes v. New York State Elec. &Gas Corp., 82 N.Y.2d, 876, 877 (1993). However, 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. Louis N. Picciano &Son, 54N.Y.2d311,316-17(1981). When Labor Law § 200 and common law negligence claims arise out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged with liability had the authority to supervise or control the performance of the work. Rizzuto v. LA Wenger Contr. Co., Inc., 91 N.Y.2d 343, 352 (1988). WTCP, 4WTC, SILVERSTEIN, and TISHMAN fail to establish prima facie that they did not have control of the work and the authority to insist that proper safety practices be followed at the construction project, or the authority to insist that the tools used by the contractors or subcontractors at the project be free from defects. WTCP, 4WTC, and SILVERSTEIN were not deposed. In his affidavit, Knipe, in his capacity as an executive of SILVERSTEIN'S successor, attests that WTCP, 4WTC, and SILVERSTEIN had no employees at the construction site on the date of the disputed incident, provided no equipment or supervision to plaintiff, nor exercised any direction or control over the work plaintiff was performing at the time. However, as discussed above, Knipe's affidavit is conclusory and provides no information as to the nature of the affiliation between SILVERSTEIN and WTCP or 4WTC, the basis of his authority on behalf of WTCP and 4WTC or the basis of his knowledge as to the involvement of WTCP, 4WTC, or SILVERSTEIN with the construction at the premises. As such, these defendants failed to demonstrate prima facie entitlement to dismissal of the aforementioned claims as against them. With respect to dismissal of plaintiff's causes of action premised on a violation of Labor Law § 241(6), as discussed in the decision and order in motion sequence 007, genuine issues of fact exist as to whether 12 NYCRR 23-1.5 (c) (3) is applicable to the facts of this case, whether the provision was breached, whether the breach proximately caused plaintiffs injuries, and whether the statute was violated so as to hold the WTC Defendants liable as owners and TISHMAN liable as general contractor. Thus, this branch of the motion is denied.
However, defendant LERA contends that the Labor Law §241(6) and §200 claims must be dismissed as against it because it was not an owner of the site, a general contractor of the construction project, or an agent thereof. In support of its contention, LERA cites to the operative base agreement with 4WTC and the Affidavit of William J. Faschan, the project director of the construction project, affirming that LERA was retained by 4WTC to serve as the structural engineer of the construction project and that LERA did not provide any equipment to any trades or any direction, supervision or control over plaintiff or the means and methods of its work. As such, the branch of the motion as it pertains to LERA is granted, without opposition.
Finally, Doka's cross-motion must be denied. As discussed in the decision and order in motion sequence 007, there are various triable issues of fact, including, but not limited to, whether the ratchet at issue was provided by Doka; whether it was defectively designed or manufactured; whether it was "sound and operable" at the time of its use, as required by the Industrial Code provision at issue; whether plaintiffs use of the ratchet with his foot constituted misuse of the product; whether any such use or misuse was foreseeable; whether such use or misuse caused the incident.
Accordingly, it is hereby
ORDERED that defendants' and third-party defendant's motion is granted only to the extent that the complaint and all cross-claims and counterclaims are dismissed in their entirety as against defendant LERA, and is otherwise denied; and it is father
ORDERED that Doka's cross-motion is denied in its entirety. This constitutes the decision and order of the court.