Opinion
Index 511922/2015
01-06-2022
LORENZO SANCHEZ, Plaintiff(s), v. VERIZON NEW YORK INC., and CUSHMAN & WAKEFIELD, INC., Defendants. VERIZON NEW YORK INC and CUSHMAN WAKEFIELD, INC. Third-Party Plaintiffs, v. GLOBAL INDUSTRIAL SERVICE INC., Third-Party Defendant.
Unpublished Opinion
DECISION/ ORDER
Hon. Bernard J. Graham Supreme Court Justice
Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion to: award summary judgment to the defend ant/3rd party plaintiff, pursuant to CPLR 3212, or in the alternative for an order of contractual indemnification and breach of contract against the 3rd party defendant.
Papers Numbered
Notice of Motion and Affidavits Annexed....................... 1-2
Order to Show cause and Affidavits Annexed............. _
Answering Affidavits and Cross Motion..................... 3-4, 5, 6
Replying Affidavits......................................................7, 8, Exhibits........................................................................ _
Other............................................................................ _
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
Defendants/Third Party Plaintiffs, Verizon New York Inc. ("Verizon") and Cushman & Wakefield, Inc., ("Cushman"), have moved (seq. 5), pursuant to CPLR § 3212, for an Order, awarding summary judgment to said defendants/third party plaintiffs and dismissing the plaintiffs complaint or in the alternative for an order awarding contractual indemnification for breach of contract against the third-party defendant Global Industrial Service Inc. ("Global").
Third-party defendant Global has cross-moved (seq. 6) for an Order, pursuant to CPLR §3212, to dismiss plaintiffs claims as against defendants/third-party plaintiffs Verizon and Cushman which claims are based upon alleged violations of §§ 200, 240, 241 and 241-a of the Labor Law; to dismiss plaintiff s claims as against Verizon and Cushman, which are grounded in common law negligence; as well as to dismiss the third-party actions of Verizon and Cushman as against Global.
Counsel for the plaintiff has opposed the relief sought in the motion of Verizon and Cushman upon the grounds that there are issues of fact with respect to the ownership of the ladder, it's condition, and whether the owner had notice of the alleged defective condition. The plaintiff further asserts that there are issues of fact as to whether plaintiff was a covered worker pursuant to the Labor Law statute.
Background:
The within action was commenced on behalf of the plaintiff by the filing of a summons and verified complaint with the Clerk of the Court on or about October 1, 2015. The complaint contains two causes of action based in negligence and violations of Labor Law sections 240 and 241, in which it was alleged that on November 12, 2013, the plaintiff was caused to sustain serious injuries at the premises known as 2101 West 12th Street, Brooklyn, New York ('the subject premises"). Issue was joined by service of an answer by defendants Verizon and Cushman on or about December 11, 2015.
Thereafter, Verizon and Cushman commenced a third-party action against Global by the filing with the Clerk of the Court of a third-party summons and complaint on or about January 15, 2016. The third-party action contains causes of action based in common law indemnification, contractual indemnification, contribution and breach of contract. Third-party defendant Global interposed an answer on or about May 2, 2016.
On or about December 30, 2015, the plaintiff served its responses to Verizon and Cushman's demand for a Bill of Particulars and the plaintiff responded to Global's demand on or about June 16, 2016. Plaintiff alleges that defendants Verizon and Cushman were negligent in allowing a dangerous condition to exist on the premises and in failing to provide plaintiff with proper protection pursuant to the Labor Law. Plaintiff further alleges there was negligence and violations of Labor Law §§200, 240, 241 and 241-a, as well as the Industrial Code. Plaintiff asserts that he sustained injuries to his left knee, ribs, neck, back and right shoulder which necessitated having to undergo various surgeries and procedures.
Depositions were conducted of the plaintiff on September 29, 2016, August 7, 2017, February 23, 2018, April 2, 2018 as well as on January 24, 2019. Three EBTs of Verizon employees were held which included Ryan Silvera on November 4, 2019; Lufus Owusu on October 13, 2020 and Robert Blessington on October 13, 2020. Thereafter, Robert Steinbuch was deposed on behalf of Cushman on November 4, 2019 and the deposition of Michael Metcalf, on behalf of Global, was conducted on November 25, 2019.
Ryan Silveira is a global real estate manager employed by Verizon. At the time of the incident, he was employed by Cushman as a portfolio m3aof 13 the Verizon account and was assigned to oversee several buildings including the subject premises.
A Note of Issue and Certificate of Readiness was filed on behalf of the plaintiff on or about February 5, 2021.
Facts:
In January 2013, Verizon entered into a property management contract with Cushman which agreement was in effect at the time, of the accident. Cushman was responsible for contracting and managing various vendors for services that were not handled by personnel of Verizon. Verizon had a supervisor assigned to the subject premises.
Regular vendors, such as Global, were hired by Cushman to perform various tasks at the building. Global provided janitorial services which included cleaning, changing light bulbs, snow removal and landscaping (see Ryan Silveria EBT p. 22). As part of their contractual agreement, Global supplied the bulbs, but the subject premises did not have space for bulb storage (see Ryan Silveria EBT p. 48 -49), so they were stored elsewhere and brought by the Global workers to the subject premises. Global workers were not permitted to change or work on the light fixtures/ballasts and if they identified they were broken, they had to tag the fixture for repair by a Verizon engineer (see Ryan Silveria EBT p. 108-109). Mr. Silveria stated that Cushman never provided Global with ladders and did not know if Global stored ladders at the subject premises. Mr. Silveria testified that while Verizon may have had ladders on site, vendors were not permitted to use Verizon's ladders or equipment but were required to use their own ladders (see Ryan Silveria EBT p. 50, 54). Verizon required their ladders to be fiberglass. Mr. Silveria stated that Verizon regularly inspected their equipment and removed any equipment that was damaged or defective. Mr. Silveria testified that he did not give any instruction or supervision to Global employees as to how to change light bulbs or use ladders (see Ryan Silveria EBT p. 47).
The plaintiff commenced his employment with Global in June 2013 as a project worker. He was part of a crew of six, (which included a supervisor named Felix) that worked in various Verizon buildings in Staten Island and Brooklyn. The crew traveled to these work locations in either a Global pick-up truck or van (see plaintiffs EBT p. 37-40). Their work instructions were given by Global supervisors and their duties included maintaining floors (stripping and waxing), cleaning hallways and bathrooms, picking up garbage, both inside and outside of the premises, as well as removing burned out florescent light bulbs and replacing them with new bulbs. The plaintiff, who spoke little English, was able to communicate with his fellow workers through hand motions, etc.
On the day of the alleged incident, the plaintiff was working with a co-worker Mark Ziegler ("Mr. Ziegler") at the subject premises, a building that is occupied by Verizon. Previously, the plaintiff had worked four or five times at the subject premises, including the day prior to the alleged incident. The van that transported them to the subject premises contained two A-frame ladders (measuring eight and ten feet in height) as well as tools that were supplied by Global. The Global supervisors gave their workers their assignment for the day (see plaintiff's EBT p. 128, 147-148). Their alleged duties that day were to change florescent light bulbs throughout the building at locations that were previously identified by a Verizon electrician who placed red cardboard tags on the bulbs that were to be replaced. On each of the floors that plaintiff worked was a straight fiberglass ladder owned by Verizon, which plaintiff testified they used when changing bulbs on fixtures that were not situated in the hallway, and used Global ladders on fixtures that were located in the hallway (see plaintiffs EBT p. 91). Employees of Cushman and Verizon testified that neither entity provided instructions or direction to the Global employees with regard to changing bulbs.
Immediately prior to the incident, the plaintiff and his co-worker Mr. Ziegler went to the power room of the basement at the subject premises where they were to change two bulbs situated within one fixture that measured five feet long and eight feet high. The plaintiff testified that he and his co-worker carried a Verizon five foot ladder to the basement as they could not transport the Global ladder to that level because that ladder was too large to fit down the basement staircase and was too high for the basement ceiling (see plaintiff s EBT p. 161-162). The ladder was described as made of metal and was nickel in color. Permission was allegedly obtained to utilize that ladder. Plaintiff testified that while they generally use a Global ladder to change bulbs in the hallways, (see plaintiffs EBT p. 85-86, 91) due to the small space in which they had to work in the basement, they borrowed the Verizon ladder from a Verizon administrator (see plaintiffs EBT p. 85).
There are conflicting accounts by the plaintiff and Mr. Ziegler as to the specific location of the ladder in the building when Mr. Ziegler picked it up. The plaintiff was of the opinion that Mr. Ziegler obtained the ladder from inside one of the cages at the subject premises. Mr. Ziegler stated that the ladder was not obtained from one of the cages because he did not have access to any of the equipment stored in cages, but rather obtained it from an unsecured area in the basement (see affidavit of Mr. Ziegler annexed as NYSCEF doc 104).
Plaintiff testified that Mr. Ziegler placed the ladder under the fixture where the bulbs needed to be replaced and prior to stepping onto the ladder, he ensured that the horizontal brackets on the legs were fully opened (see plaintiff s EBT p. 212-213). Plaintiff then climbed the ladder and with his right foot situated on the fourth step and his left foot on the third step, he reached up, placed his hands on the first bulb, but could not twist the bulb as it was stuck in the socket. An attempt to remove the second bulb in a similar manner was also unsuccessful (see plaintiff s EBT p. 216-219). Unable to change the bulbs, the plaintiff, who was not holding onto the ladder, began to descend the steps of the ladder. The plaintiff stated that as he was about to move to the first step, the ladder began to shake and the ladder fell to the left and he fell to the right onto the floor (see plaintiffs EBT p, 225). Mr. Ziegler was not in the room at the time of this alleged incident.
While there is no consensus as to whether the subject ladder had been located or identified, Michael Metcalf, the regional manager for Global, testified that he went to the premises either the day of the accident or the day following and located the ladder that was used. Mr. Metcalf described it as a four foot wooden A-frame ladder, light wood in color with no identifying writing or name on it. It was further described as being in good condition and not broken (see EBT of Michael Metcalf p. 32, 34-35, 41, 81-82). Mr. Ziegler described the subject ladder as reddish in color with silver rungs and the word Verizon stenciled on it. Mr. Ziegler further described the ladder as having "one of the feet at the bottom of the legs was worn almost completely away" (see affidavit of Mr. Ziegler annexed as NYSCF Doc. 104).
Parties' Contentions:
Here, the Court is presented with the issue as to whether a question of fact exists with respect to the alleged negligence of Verizon, Cushman, and Global, and whether the defendants violated Labor Law §§ 240(1), 241 (6) and 200.
In support of defend ants/third-party plaintiffs Verizon and Cushman's motion for summary judgment, counsel argues that plaintiffs labor law claims must be dismissed, as plaintiff was merely performing routine maintenance and neither Verizon nor Cushman were responsible for supervising, controlling, and directing Global's employees. Counsel also asserts that plaintiff could not have been using Verizon's ladder at the time of the accident, as Verizon only uses fiberglass ladders and plaintiff claims he fell from a metal ladder. Counsel maintains the fact that the ladder which caused plaintiffs injury was located at the worksite is insufficient to establish liability on behalf of Verizon and Cushman. It is further argued that Verizon and Cushman are entitled to conditional contractual indemnity against Global due to Global's alleged negligence with respect to the selection of ladders as well as the failure of a Global employee to assist the plaintiff while utilizing the ladder.
In support of third-party defendant Global's cross motion, counsel concurs with Verizon and Cushman' argument to dismiss plaintiffs labor law and negligence claims as against those defendants. In addition, counsel asserts that Verizon and Cushman's third -party claim should be dismissed because the subject accident did not arise out of the negligent acts or omissions of Global, and is therefore not within the scope of the indemnification agreement. Counsel also argues that Global had no obligation to provide insurance coverage to Verizon or Cushman for their own potential negligence, and that said defendants' common law indemnification and contribution claims are barred by the Worker's Compensation Law, as plaintiff did not sustain a grave injury as a result of the subject accident.
Third-party defendant Global has submitted opposition to the portion of defendants/third-party plaintiffs Verizon and Cushman's motion which seeks summary judgment as against Global for contractual indemnification and breach of contract. Counsel also notes that said defendants did not seek summary judgment on the common law indemnification and contribution claims, which counsel maintains are barred by the Worker's Compensation Law.
Plaintiff, by his attorneys, has also submitted opposition to the motions by Verizon and Cushman, asserting that there are issues of fact as to whether: (1) the ladder was owned by Verizon; (2) the worn feet of the ladder was the reason plaintiff fell while performing work; (3) the ladder was properly inspected and maintained; (4) it was foreseeable that the ladder would be used by plaintiff, an employee of Global; and (5) defendants had actual or constructive notice of the ladder's defective condition. With respect to the Labor Law claims, counsel argues there are issues of fact as to whether the type of work that plaintiff was performing included tasks that are covered under the Labor Law.
Discussion:
Here, the Court is presented with the issue of whether Verizon, Cushman and/or Global owed a duty to the plaintiff and whether a breach of their respective duties caused or contributed to plaintiffs alleged injuries.
On a motion for summary judgment, the moving party must make a prima facie showing of its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form sufficient to establish the absence of an y issues of fact. Alvarez v Prospect Hosp.. 68 N.Y.2d 320, 324 [1986]; Jacobsen v New York City Health & Hosps. Corp. 22 N.Y.3d 824, 833 [2014].
I. Labor Law §§ 240(1) and 241(6)
Labor Law §240(1) states, in pertinent part, "All contractors and owners and their agents... .shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." The Court of Appeals has held that Labor Law §240(1) does not cover routine maintenance done outside the context of construction work. Prats v Port Auth. Of N.Y. & N.J.. I00N.Y.2d 878, 882 [2003]. In addition, Labor Law §241(6) states that "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places..." (emphasis added). Defendants assert that changing a light bulb is routine maintenance work performed outside the context of construction work. Plaintiff claims that the work performed was "repair" work, which is enumerated as actionable under the statute, because if plaintiff determined something was wrong with the light fixture itself while replacing the light bulb, plaintiff would have been required to repair it. However, this argument is contradicted by plaintiffs own deposition testimony that he was only replacing light bulbs at the time of the alleged accident, and that only the Verizon electrician was permitted to change or repair a light fixture which is corroborated by the deposition testimony of Ryan Silvera and Lufus Owusu of Verizon and Michael Metcalf of Global. (See Exhibit "G," p. 71, 124; Exhibit "K," p. 108-109; Exhibit "L," p. 30-31, 88-89; Exhibit "O," p. 15-16, 19). It is therefore undisputed that at the time of the alleged accident, the plaintiff was changing a light bulb, not repairing the light fixture, and as such Labor Law §§240(1) and 241 (6) do not apply. Accordingly, the portion of Verizon and Cushman's motion to dismiss plaintiff s claims as against defendants Verizon and Cushman pursuant to Labor Law §§ 240(1) and 241(6) is granted and said claims are dismissed.
II. Labor Law §200 and Negligence
To establish a prima facie case of negligence, the plaintiff must demonstrate (1) that the defendant owed a duty of reasonable care; (2) there was a breach of that duty and (3) a resulting injury was proximately caused by that breach. Darby v Compagnie National Air France, 96 N.Y.2d 343, 728 N.Y.S.2d 731 [2001]. The degree of caution required to be exercised varies with the time, place and conditions involved, and with the risk reasonably to be apprehended. See Atkins v Glens Falls City School Dist.. 53 N.Y.2d 325, 441 N.Y.S.2d 644 [1981].
A building owner has a common law obligation to maintain its premises in a reasonably safe condition, taking into account all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Basso v Miller, 40 N.Y.2d 233, 241 [1976]; Galindo v Town of Clarkstown.2 N.Y.3d 633, 636 r20041; Peralta v Henriquez, 100N.Y.2d 139 [20031; Khanimov v McDonald's Corp.. 121 A.D.3d 1050 [2d Dent 20141; Afnashmi v Certified Analytical Group. Inc.. 89 A.D.3d 10 [2d Dept 2011]; Walsh v Super Value. Inc.. 76 A.D.3d 371 [2d Dept 2010]. This common law duty of owners and contractors to provide employees with a safe place to work is also codified in Labor Law §200, which requires all work areas to be "constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places." Labor Law §200(1).
"When a claim arises out of the alleged defects or dangers in the methods or materials of the work, recovery against the owner., .cannot be had., .unless it is shown that the party to be charged had the authority to supervise or control the performance of the work." Ortega v Puccia. 57 A.D.3d 54, 61 [2dDept 2008]. In order to prevail on a Labor Law §200 claim, plaintiff must demonstrate that the named defendant, either through control or supervision, was directly responsible for the injury, Lombardi v Stout, 80 N.Y.2d 290 [1992]; Sabato v New York City Life Ins. Co., 259 A.D.2d 535 [2d Dept 1999].
With respect to defendant Cushman's liability, plaintiff has testified that he received all of his work instructions from his Global supervisors. Although the building administrator may have indicated which light bulbs needed to be changed, this does not constitute supervision or control over the performance of the work, as no instruction was given and no materials were provided by Cushman, as they did not keep any ladders in the building. Cuartas v Kourkoumelis. 265 A.D.2d293 [2d Dept 19991: Buccini v 1568 Broadway Associates, 250 A.D.2d 466 [1st Dept 1992]. Accordingly, the portion of defendants Verizon and Cushman's motion to dismiss plaintiff s Labor Law §200 and common law negligence claims as against Cushman is granted and said claims are dismissed.
However, it is clear that a question of fact exists regarding the ownership of the ladder at issue. There is conflicting testimony not only about the material the ladder was made out of, but also where the ladder had been located and what condition the ladder was in when plaintiff allegedly used it. Although Verizon claims they did not use metal ladders or wooden A-frame ladders at any of their facilities, but rather used fiberglass ladders, plaintiff testified that the ladder involved in his alleged accident was a metal, nickel -colored five-foot A-frame ladder that his co-worker Mr. Ziegler obtained from a caged area in the building's basement. There are many facts in conflict with this testimony, including plaintiffs supervisor's testimony that the ladder he was shown approximately one day after the accident was a wooden ladder, and Mr. Ziegler's testimony that he did not acquire the Verizon ladder from one of the cages, but from Verizon's space within the building. In further conflict is plaintiffs affidavit, written after returning to the Verizon building years after the alleged accident and upon seeing Verizon ladders, in which he stated that the ladder involved in his alleged accident was in fact a Verizon ladder. "If a [property owner] furnishes a ladder or a scaffold for the contractor's employees to work on he must be careful to furnish a safe appliance, but if the contractor furnishes such appliances the [property owner] does not thereby become responsible for their sufficiency." Hess v Bernheimer & Schwartz PilsenerBrewing Co., 219 NY 418 [1916]. see also Persichilli v Triborough Bridge and Tunnel Authority. 16N.Y.2d 136 [1965]. Due to the inconsistent and contradictory testimony and lack of conclusive evidence as to the owner of the ladder involved in plaintiffs alleged accident, the ownership of the ladder is a question of fact that must be submitted to the jury. See Nye v Putnam Nursing & Rehabilitation Ctr., 62 A.D.3d 767 [2d Dept 2009]. Accordingly, the portion of defendants Verizon and Cushman's motion to dismiss plaintiffs Labor Law §200 and common law negligence claims as against Verizon is denied.
III. Indemnity and Workers Compensation Law §11
Defendants Verizon and Cushman assert that third-party defendant Global is required to hold Verizon and Cushman harmless for injuries caused by the acts and/or omissions of its employees. Said defendants argue that, had Global's employees selected ladders suitable for use at the Verizon building (ladders that would have fit in the basement) and held the ladder while the plaintiff was working on it, the accident would not have occurred.
When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances." Hooper Assoc, v AGS Computers. 74 N.Y.2d 487, 491 -492 [1989]; Hughey v RHM-88. LLC. 77 A.D.3d 520 [1st Dept 2010].
The contract between Verizon (Owner), Cushman (Property Manager) and Global (Contractor) states "Contractor agrees to furnish at its expense all labor, supplies, uniforms, equipment and materials necessary to properly perform the Services." (See Defendants' Exhibit "I", para. 1). In addition, it sets forth that "Contractor assumes full responsibility for the actions of such personnel while performing Services pursuant to this Agreement..." (See Defendants' Exhibit "I” para. 12). Defendants Verizon and Cushman maintain that Global breached this contract when it failed to provide an adequate ladder for its employees to use while performing the contracted Services. As a question of fact exists as to the ownership of the ladder, the issue of contractual indemnity and breach of contract is preserved for trial. In addition, as defendants Verizon and Cushman have not opposed the portion of third-party defendant Global's motion to dismiss the common law indemnity and contribution claims as against Global, said portion of Global's motion is granted.
Conclusion:
Accordingly, it is
ORDERED that Verizon and Cushman's motion for summary judgment in seq. 5 is granted only to the extent that plaintiffs claims against Cushman are dismissed, and plaintiffs claims against Verizon pursuant to Labor Law §§ 240(1) and 241(6) are dismissed, and in all other respects is denied. The remaining claims against Verizon pursuant to Labor Law §200 and common law negligence remain, as there exists a question of fact as to the ownership of the ladder involved in plaintiffs alleged accident; and it is further
ORDERED that Global's cross motion for summary judgment in seq. 6 is granted only to the extent that Verizon's common law indemnity and contribution claims as against Global are dismissed. Verizon's remaining claim against Global for breach of contract is preserved for trial, as there exists a question of fact regarding the ownership of the ladder.
Accordingly, the caption is amended to read as follows:
.LORENZO SANCHEZ, Plaintiff(s), -against
VERIZON NEW YORK, INC., Defendant(s).
VERIZON NEW YORK, INC., Third-Party Plaintiff(s)
-against- m
GLOBAL INDUSTRIAL SERVICE INC., Third-Party Defendant(s)
This shall constitute the decision and order of this Court.