Opinion
306485/11
06-22-2018
James SAUER, Plaintiff, v. The CITY OF NEW YORK, NYC Department of Environmental Protection, John P. Piccone, Inc., URS Corporation-New York, Malcolm Pirnie, Inc. & URS/Malcom Pirnie Joint Venture, Defendants. the City of New York, & NYC Department of Environmental Protection, Third-party Plaintiffs, Eldor Electric, LLC, Third-party Defendant. Malcolm Pirnie, Inc. & Malcolm Pirnie, Inc., as a Member of the URS/Malcom Pirnie Joint Venture, Second Third-party Plaintiffs, CMS Engineering, P.C., Second Third-Party Defendant. the City of New York, NYC Department of Environmental Protection, John P. Piccone, Inc., Third Third-Party Plaintiffs, Villafane Electric Corp., Third Third-party Defendant. Villafane Electric Corp., Fourth Third-party Plaintiff, LCM Consulting, Inc., Fourth Third-party Defendant.
Plaintiff's Attorney: Steven C. November, Esq., Raphaelson & Levine Law Firm, PC, Pennsylvania Building, 14 Penn Plaza, Suite 1718, New York, New York 10122, (212)268-3222 Picone Attorney: Cody A. Brittain, Esq., 44 Wall Street, New York, New York 10005, (212)732-2000 Malcolm Attorney: Gail J. McNally, Esq., Lawrence, Worden, Rainis & Bard PC, 225 Broad Hollow Road, Suite 105E, Melville, New York 11747, (631)694-0033 LCM Attorney: Christopher R. Invidiata, Esq., Morris, Duffy, Alonso & Faley, 2 Rector Street, 22nd Floor, New York, New York 10006, (212)766-1888 City of New York & DEP Attorney: William D. Joyce III, Esq., Barry, McTiernan & Moore, LLP, 2 Rector Street, New York, New York 10006, (212)313-3600 URS Attorney: Jana S. Farmer, Esq., Wilson, Elser, Moskowitz, et. al., 133 Westchester Avenue, White Plains, New York 10604, (914)323-7000 Eldor & Villafane Attorney: Karen Maniscalco, Esq., Law Office of Michael L. Safranek, One Water Street, White Plains, New York 10601, (914)997-0072
Plaintiff's Attorney: Steven C. November, Esq., Raphaelson & Levine Law Firm, PC, Pennsylvania Building, 14 Penn Plaza, Suite 1718, New York, New York 10122, (212)268-3222
Picone Attorney: Cody A. Brittain, Esq., 44 Wall Street, New York, New York 10005, (212)732-2000
Malcolm Attorney: Gail J. McNally, Esq., Lawrence, Worden, Rainis & Bard PC, 225 Broad Hollow Road, Suite 105E, Melville, New York 11747, (631)694-0033
LCM Attorney: Christopher R. Invidiata, Esq., Morris, Duffy, Alonso & Faley, 2 Rector Street, 22nd Floor, New York, New York 10006, (212)766-1888
City of New York & DEP Attorney: William D. Joyce III, Esq., Barry, McTiernan & Moore, LLP, 2 Rector Street, New York, New York 10006, (212)313-3600
URS Attorney: Jana S. Farmer, Esq., Wilson, Elser, Moskowitz, et. al., 133 Westchester Avenue, White Plains, New York 10604, (914)323-7000
Eldor & Villafane Attorney: Karen Maniscalco, Esq., Law Office of Michael L. Safranek, One Water Street, White Plains, New York 10601, (914)997-0072
Joseph E. Capella, J.
The following papers numbered 1 to 8 read on this motion, noticed on May 5, 2017, and duly submitted on May 3, 2018, on the Motion Calendar of __________.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1
ANSWERING AFFIDAVIT AND EXHIBITS 3-5
REPLY AFFIDAVIT AND EXHIBITS 6-8
MEMO OF LAW 2
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
As this court previously discussed in its earlier decisions, the plaintiff, an employee of Eldor Electric, LLC (Eldor), was injured on February 4, 2011, when he slipped on ice while working at the Croton Water Treatment Plant. In the ensuing personal injury action, a variety of contractors were named as defendants, including URS Corporation-New York, URS/Malcom Pirnie Joint Venture (collectively referred to as URS) and Malcolm Pirnie, Inc. (Malcolm). By notice of motion dated April 14, 2017, URS seeks summary judgment and dismissal of plaintiff's Labor Law §§ 241(6), 200 and common-law negligence claims, and all cross-claims against it.
Labor Law § 200 codified an owner's and general contractor's common-law duty to provide workers with a reasonably safe place to work. ( Comes v. NYS Electric , 82 NY2d 876 [1993].) And claims under this statute fall into two broad categories: injuries arising from unsafe condition(s), and injuries arising from the means or manner in which work is performed. ( Chowdhury v. Rodriguez , 57 AD3d 121 [2nd Dept 2008].) Liability under Labor Law § 200 for the former category depends on the negligence of the owner, contractor or agent, where one of them creates of an unsafe condition or negligently fails to correct an unsafe condition despite having had actual or constructive notice. ( Espinosa v. Azure , 58 AD3d 287 [1st Dept 2008].) Where the injury arises from the means or manner in which the work is performed, liability may only be imposed if the owner or general contractor exercised supervision or control of the work that led to the injury. ( O'Sullivan v. IDI , 7 NY3d 805 [2006].) Labor Law § 241(6) goes beyond § 200 by imposing a nondelegable (although not absolute) duty regardless of who controls or supervises the work site ( St. Louis v North Elba , 16 NY3d 411 [2011] ), and it authorizes the Commissioner of Labor to promulgate administrative rules to protect the safety of workers. A violation of one of these administrative rules does not result in absolute liability but is mere evidence of negligence, and ultimately any § 241(6) action must be predicated upon a violation of a specific, detailed rule governing the conduct at issue. ( Ross v. Curtis-Palmer , 81 NY2d 494 [1993].) In this action, plaintiff's § 241(6) claim is predicated upon NY Industrial Code § 23-1.7(d), which deals with slipping hazards. Supervision or control of the work site or actual or constructive notice of an Industrial Code violation is not necessary to impose vicarious liability against an owner or general contractor, so long as someone in the construction chain was negligent. ( Rizzuto v. L.A. Wenger , 91 NY2d 343 [1998].) On the other hand, where a contractor is sued in its capacity as an agent (emphasis added) of the owner or general contractor, liability under § 241(6) depends upon whether this contractor had the authority to supervise and control the portion of the work that brought about the injury ( Harris v. Hueber-Breuer , 67 AD3d 1351 [4th Dept 2009] ;).
The instant project was comprised mostly of prime contractors with no horizontal contractual relationships, and URS was retained by the owner, the New York City Department of Environmental Protection (DEP), to act as the construction manager (emphasis added) for the work site. One of URS's role at the work site was to guard against accidents by mediating between various prime contractors and ensuring the site as a whole was operating safely. Since Labor Law § 241(6) only imposes liability on general contractors, owners and their agents, and there is no dispute that URS is neither the owner nor general contractor, the question then becomes whether URS qualifies as an agent of the owner. Keep in mind that the principal difference between a general contractor and a construction manager is that a general contractor has decision-making authority, while a construction manager's role is primarily advisory. Hence, a construction manager may not be held responsible for injuries under § 241(6) except where it has the ability to control the activity which brought about the injury and therefore becomes vicariously liable as an agent of the owner. ( Walls v. Turner , 4 NY3d 861 [2005].) In other words, it is only upon obtaining the authority to supervise and control that a third party will be included in the group that has nondelegable liability, and therefore treated as an agent under § 241(6). ( Russin v. Louis , 54 NY2d 311 [1981] ; Ortega v. Catamount , 264 AD2d 323 [1st Dept 1999].) As the Court of Appeals noted in Russin , to impose a nondelegable duty upon every contractor at a job site for all injuries occurring therein would make each one an insurer for all workers regardless of the ability to direct, supervise and control those workers, leading to an unjust result and a direct contravention of the express legislative intent of the statute. However, when it comes to construction managers, the relationship between it and the owner may cause the line between authority and advice to become blurred, resulting in contractors and their employees assigning considerable weight to the words of the construction manager when spoken at the job site.
The plaintiff testified that on the date in question, he and two coworkers left Gatehouse 5 and headed to the Eldor trailer to obtain additional tape and markers. They proceeded down a set of stairs covered with snow. According to the plaintiff, there was snow on the ground at the bottom of the steps, which was packed down from people walking on it creating a path of footprints. At approximately 100 feet from Gatehouse 5 and still on the path of footprints, the plaintiff slipped and fell. The plaintiff further testified that there was no alternative walkway to access the area where the Eldor trailer was located, that there was construction work going on this area, and that there were no signs, cones, barrels or taping in the area warning him of slippery conditions. According to URS, it's entitled to summary judgment on plaintiff's § 241(6) claim because it was only retained as the construction manager with general oversight responsibilities. It monitored the contractors' compliance with their safety plans and DEP's safety requirements, but did not have sufficient authority to supervise and control the plaintiff, the manner in which he performed his work, or the routes he chose when walking across the project site. URS alleges that it was plaintiff's employer, Eldor, and plaintiff himself as Eldor's foreman, who were responsible for the means and methods (emphasis added) of the plaintiff's work and safety. URS also argues that it is entitled to summary judgment on plaintiff's § 200 and common law negligence claims because it did not exercise the requisite supervisory control over the plaintiff, his work or the manner in which he performed his job, nor were they on notice of the icy condition.
The contract between DEP and URS specified that the construction manager "shall be the representative of the [DEP] at the site," and provide overall project communications and coordination. URS is also obligated to arrange and conduct meetings with the construction contractors, and designate a Construction Management Site Safety Officer to coordinate site safety with each contractor's designated Site Safety Officer. The URS site safety reports indicate snow and sleet on February 2, and breezy conditions at or near freezing the next two days, including the day of the accident. The superintendent for the defendant, John P. Picone, Inc. (Picone), testified that Picone was responsible pursuant to its contract with the City for clearing snow at the job site. He stated that no other contractor had responsibility for shoveling the snow and ice, and if a contractor needed snow cleared, it would either communicate directly with Picone or go through the "chain of command," which included contacting URS, who would then contact Picone. According to Picone's daily log book entry for February 4, 2011, Eldor requested that Picone clear a path from Gatehouse 5 to the job site. And according to Picone's superintendent, this area, which included the location where plaintiff fell, was not cleared of snow and ice.
It appears that the during the two weeks leading up to the date of the accident (ie, February 4, 2011), the weather at the job site was cold, snowy and rainy, with temperatures fluctuating above and below freezing. On January 27, 2011, Eldor sent an e-mail to Picone indicating that snow was blocking access to the Eldor trailer. On February 2 and 3, 2011, Eldor sent e-mails to Picone requesting snow removal at the job site. Dawn Koshinsky Ng from Villafane Electric Corp. testified that it was Picone's responsibility to remove snow at the site, and that URS was responsible for ensuring that it was done. According to Ms. Ng, she sent Picone an e-mail on February 4, indicating "the ice build-up between the Stairs to Gate House No 5 and the men's c-boxes (staging area) is really bad." Ms. Ng also testified that the only entity on the job site that Picone had to respond to was URS. Bernard Daly testified on behalf of DEP that URS dealt with all day-to-day managing of the construction contracts, supervising the work of the contractors and monitoring their safety. According to Mr. Daly, while URS did not control the work of the contractors or the means and methods of construction at the job site, URS employed site safety professionals that were responsible for monitoring the safety of all employees. He further testified that URS also made decisions about which areas required snow removal. Joseph Jao, an engineer for URS, testified that as part of URS's job in ensuring safety at the job site, he would contact and direct Picone to remove any snow and ice where "people and the equipment have need to access," and he would "follow-up on the snow removal."
Contrary to URS's position, this court is not convinced that the danger in the instant action was part of, or tangential to, the tasks assigned to the plaintiff or his employer, Eldor. In other words, the plaintiff's injuries did not arise from the means or manner in which the work was being performed, but instead arose from a pre-existing unsafe snow and ice condition. ( Urban v. No. 5 , 62 AD3d 553 [1st Dept 2009].) According to URS, since it did not supervise or control the plaintiff, and was not on notice of the icy condition, then plaintiff's § 200 and common law negligence claims must be dismissed. But as this action does not fall withing the means or manner category, only notice and not supervision and control is a factor in determining negligence. ( Espinosa , 58 AD3d 287 ; O'Sullivan , 7 NY3d 805.) As already noted, one of URS's role at the work site was to guard against accidents by mediating between various prime contractors and ensuring the site as a whole was operating safely. The various contractors' e-mails as early as January 27th requesting snow removal, and URS site safety reports indicating snow and sleet as early as February 2nd, may support a finding that URS had constructive notice of the unsafe snow and ice condition. ( Espinosa , 58 AD3d 287.) Also, there is no evidence included in the instant motion as to when the area where plaintiff fell was last inspected, when if ever snow was removed from this area, or whether the unsafe snow and ice condition could not have been discovered upon reasonable inspection ( McCullough v. One Bryant , 132 AD3d 491 [1st Dept 2015] ).
URS also argues that § 241(6) doesn't apply because it was only retained as the construction manager with general oversight responsibilities. However, various factual allegations previously discussed may demonstrate otherwise. For example, the contract between URS and DEP specified that URS "shall be the representative of" DEP, provide overall project communications and coordination at the work site, and ultimately put URS in charge of implementing site safety regarding existing on-site conditions. And according to various witnesses, URS made decisions about which areas required snow removal, directed Picone to remove said snow, and would "follow-up on the snow removal." Given the aforementioned, a jury could find that URS was not the typical construction manager, but an agent of the owner, essentially functioning as the eyes, ears and voice of the owner, with broad responsibility to coordinate and supervise work-site safety. Viewing the evidence in a light most favorable to the plaintiff, ( O'Sullivan v. Presbyterian , 217 AD2d 98 [1st Dept 1995] ), the court is satisfied that issues of fact exist as to whether URS had constructive notice of the unsafe snow and ice condition for purposes of Labor Law § 200 and common law negligence, and whether URS qualifies as an agent of DEP under Labor Law § 241(6). And therefore, based on the aforementioned, the instant motion by URS is denied accordingly. The plaintiff is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.