Opinion
7680/03.
Decided July 31, 2006.
Upon the foregoing papers, defendants and third-party plaintiffs, St. James Episcopal Church et al. ("defendant St. James"), move for summary judgment dismissing plaintiff Almena Serrano's complaint on all grounds, and, alternatively, for indemnification from third-party defendant Barr Barr, Inc. ("defendant Barr"). Plaintiff Almena Serrano ("plaintiff") cross-moves for leave to amend her bill of particulars to add an allegation of an additional Industrial Code violation.
Background
In 2001, plaintiff was engaged in a construction project at St. James Episcopal Church in Manhattan, New York. Defendant St. James is the owner of the church property, and defendant Barr was the "constructor" for the work in question, as well as plaintiff's employer.
On November 5, 2001, the construction crew was doing demolition work in the church "pulling up" certain areas of the floor. As part of this project, plaintiff and a co-worker were carrying a long, heavy wooden beam across the church to place it on a stack of beams to be discarded. Plaintiff was walking backward, while her co-worker was walking forward. As plaintiff stepped back, she heard a "cracking" noise and felt her foot "going through the floor."
In response, plaintiff stopped; however, her co-worker kept walking and the beam was pushed into plaintiff causing her to fall backwards. The fall caused plaintiff various injuries, including being cut by "a bunch of debris" on the floor. Immediately after the accident, plaintiff saw a nearby hole in the floor, which she believed was the cause of the cracking noise she had heard. She testified that the hole was approximately one and a half by two feet, and that you "could look right to the basement" through the hole.
On March 4, 2003, plaintiff filed suit against defendant St. James for common law negligence and violations of Labor Law §§ 200 and 241 (6). On September 15, 2003, defendant St. James brought a third-party action against defendant Barr seeking indemnification for any recovery by plaintiff Serrano.
Although plaintiff also cited Labor Law § 240 (1) in her negligence paragraphs in the complaint and bills of particulars, she also specifically stated in the bills of particulars that a violation of Labor Law § 240 (1) is not alleged. In her cross-motion and opposition to St. James's motion for summary judgment, plaintiff concedes that Section 240 (1) "does not apply to the facts of this accident." Thus, to the extent that any claim based on Labor Law § 240 (1) was stated, it is hereby dismissed.
Common Law Negligence/Labor Law § 200
Labor Law § 200 states in relevant part:
"All places to which this chapter applies shall be so 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. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
Labor Law § 200 codifies common law negligence rules and gives rise to liability only when a defendant actually exercised "supervisory control" over the work in question ( Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 877; see also e.g. Aranda v. Park E. Constr., 4 AD3d 315, 316). To demonstrate entitlement to summary judgment dismissing a Labor Law § 200 and common law negligence claim, a defendant must submit uncontroverted evidence that it did not exercise actual control over the work in question ( see e.g. Aranda, 4 AD3d at 317).
Defendant St. James has made a prima facie showing that it exercised no actual control or supervision over the work in question. Plaintiff testified that "all her instructions" came from the Barr foreman and none from defendant St. James. Similarly, the superintendent for defendant Barr testified that the Barr foreman controlled the St. James construction work both generally and on the day of the accident, and that the Barr employees, including plaintiff, did not take any directions or instructions from St. James.
In response, plaintiff notes that a representative of the company that St. James hired to "interface" with defendant Barr was present at weekly meetings at which safety was discussed. Also, plaintiff notes that the deposition testimony leaves unclear whether someone from St. James had the authority to stop work based on an unsafe condition. Accordingly, plaintiff argues that there are questions of fact as to whether defendant St. James had the "authority to assume control over safety." The "right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the supervision and control of the work site necessary to impose liability on an owner . . . pursuant to Labor Law § 200" ( Dennis v. City of New York, 304 AD2d 611, 612). Thus, given all the circumstances here, even if St. James's representatives discussed safety issues, occasionally inspected the work, or had the authority to stop work for a safety violation, St. James still lacked the actual control or supervision over the work necessary to find liability under the common law and Labor Law § 200.
Therefore, that part of defendant St. James's motion seeking summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 claim is granted.
Labor Law § 241 (6)Labor Law § 241 (6) provides in relevant part: "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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith."
Section 241 (6) was enacted to provide construction workers with reasonable and adequate safety protections, and places a nondelegable duty upon owners and general contractors to comply with the specific safety rules set forth in the Industrial Code ( Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). "In order to recover on a cause of action alleging a violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards" and which is applicable to the facts of the case ( Handlovic v. Bedford Park Dev., Inc., 25 AD3d 653, 654 [citing Ross, 81 NY2d at 503-505]).
In her bill of particulars, plaintiff alleges violations of the following Industrial Code sections: 12 New York Code of Rules and Regulations ("NYCRR") §§ 23-1.7 (b) (1), and 23-1.7 (e) (1) and (2). Defendant St. James argues for summary judgment dismissing plaintiff's Section 241 (6) claim on the grounds that plaintiff has not stated a violation of a specific code provision applicable to the facts in this case.
Plaintiff had also alleged violations of 12 NYCRR 23-1.7 (d), 23-1.7 (e) (2), and 23-2.1, and the Occupational Safety and Health Act ("OSHA"). In her cross-motion plaintiff has conceded that Sections 23-1.7 (d) and 23-2.1 are no longer applicable to the facts of this case. Plaintiff also appears to have withdrawn any claim based on Section 23-1.7(e) (2) or OSHA standards. Accordingly, any Section 241 (6) claim based on 12 NYCRR 23-1.7 (d), 23-1.7 (e) (2), or 23-2.1, or any OSHA standards, is hereby dismissed.
Section 23-1.7 (b) (1) 12 NYCRR § 23-1.7 (b) (1) governs protection for "hazardous opening[s] into which a person may step or fall." Defendant St. James concedes that this section is specific enough to give rise to Section 241 (6) liability, but argues that the rule is inapplicable because the hole here was not big enough for a person to fall through and because plaintiff did not actually fall through the hole. It is true that 12 NYCRR § 23-1.7 (b) (1) is "inapplicable where the hole is too small for a worker to fall through" ( Rice v. Board of Educ. of City of New York, 302 AD2d 578, 579 [internal quotation marks and citation omitted]). However, plaintiff did testify that the hole she observed was approximately one and half by two feet, which is arguably big enough for someone to fall through. Nonetheless, 12 NYCRR § 23-1.7 (b) (1) is not applicable here. Subsection (b) is titled "Falling hazards," and provides for covers, railings, barriers, life nets, safety belts, etc., for those working on or around hazardous openings. In other words, the safety measures "all bespeak of protections against falls from an elevated area to a lower area through openings large enough for a person to fit" ( Messina v. City of New York, 300 AD2d 121, 123 [emphasis added]). Plaintiff never testified that she fell into a hole. Instead, the hole plaintiff observed may have caused the "cracking" noise plaintiff heard when she stepped on or near it, which caused plaintiff to stop walking and allowed the beam to push into her, causing her to fall. At most, plaintiff's foot may have gone through the floor, but she herself did not fall through the hole.
As plaintiff did not fall through the hole and has not shown how any of the enumerated safety devices would have prevented the accident in this case, 12 NYCRR § 23-1.7 (b) (1) is inapplicable to the facts of this case and cannot form a predicate for Section 241 (6) liability.
12 NYCRR § 23-1.7 (e) (1) 12 NYCRR § 23-1.7 (e) (1) requires passageways to be free of any obstructions which could cause tripping. As both sides agree, the regulation applies only to "passageways."
Plaintiff testified that she was working in the "cathedral part" of the church where the pews and altar would have been had they not been previously removed. Plaintiff gave no indication that she was in a passageway. However, plaintiff argues that her allegation that there was "stack of beams" on the left side and "garbage on the right side" arguably "transforms the area into a passageway." But a "stack of beams" and "garbage" do not make a working area into a passageway. Nothing in plaintiff's testimony indicated that the area in question did not remain a "common, open area" ( Dalanna v. City of New York, 308 AD2d 400, 401).
Accordingly, 12 NYCRR § 23-1.7 (e) (1) is not applicable here and cannot be a predicate for Section 241(6) liability.
12 NYCRR 23-3.3 (c)/Leave to Amend
Although plaintiff filed a note of issue in August 2005, she now cross-moves for leave to amend her bills of particulars to add 12 NYCRR 23-3.3 (c) as part of her Labor Law § 241 (6) claim. Plaintiff states that in working on the opposition to defendant's motion for summary judgment, "it was discovered that Section 23-3.3 (c) of the Industrial Code was inadvertently omitted from Plaintiff's Bill of Particulars." Section 23-3.3 (c) provides as follows:
"(c) Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."
Both defendants oppose plaintiff's cross motion, arguing that the delay was unreasonable and that they will be prejudiced in having to "reorient" their defenses to this claim. Alternatively, defendants argue there was no violation of Section 23-3.3 (c) based on the testimony of Barr's superintendent that the floor was inspected daily by the Barr safety foreman, and weekly by the company hired by Barr to monitor site safety, that there is no evidence that the floor was weakened, and that the floor was not a proximate cause of plaintiff's injuries. Defendants' arguments are unavailing.
As long it does not involve new facts or a new theory of liability, it is permissible for a plaintiff to allege a new Industrial Code violation in papers opposing a summary judgment motion, well after the note of issue has been filed ( Kelleir v. Supreme Indus. Park, LLC, 293 AD2d 513, 514). In her complaint, plaintiff makes numerous allegations that the floor was in dangerous condition and improperly inspected. The complaint states that defendants were negligent in failing to "properly inspect the area," in "allowing a floor to remain with a hole(s) in and exposed [sic]," in failing to provide secure covering for the hole, and in allowing the floor to be left in a "dangerous" condition. Plaintiff makes similar allegations in both bills of particulars, including the allegation that defendants "failed to properly inspect" the area. In the bills of particulars, plaintiff alleges that her fall was due to "the removed flooring leaving the under wood beams/planks exposed with holes, cracks, . . . and otherwise dangerous and traplike condition [sic]." Based on these various statements, plaintiff clearly gave notice of a claim premised upon the hazardous nature of the floor and the improper inspection thereof. Thus, no new facts or theories of liability would be raised by plaintiff's proposed amendment, and defendants would not be unfairly prejudiced by it.
Moreover, the amendment sought by plaintiff does plead a tenable claim. In her deposition, plaintiff testified that she felt her foot "going through the floor" when she heard the cracking noise just before she fell, and that after the accident, she saw a hole in the floor that she thought caused the cracking sound. This is sufficient to indicate plaintiff might have been working on a weakened and hazardous floor in violation of 12 NYCRR 23-3.3 (c). Whether the floor was adequately inspected, or was in fact weakened or dangerous, and, if so, whether that actually caused plaintiff's injuries are all questions of fact for the jury. Thus, as the proposed amendment presents a tenable claim, raises no new factual issues or legal theories, and does not unfairly prejudice the defendants, plaintiff's cross-motion to add 12 NYCRR 23-3.3 (c) to her bill of particulars is granted.
Because plaintiff has alleged violation of a specific, concrete, and arguably applicable Industrial Code provision ( 12 NYCRR 23-3.3 (c)), that part of defendant St. James's motion seeking dismissal of plaintiff's Labor Law § 241 (6) claim is denied.
Indemnification
Defendant St. James argues that it is entitled to indemnification from defendant Barr for any recovery by plaintiff Serrano, based on common law indemnity and a contractual indemnification provision. Defendant Barr opposes St. James's motion for indemnification, arguing first that there are factual questions regarding the "involvement" of St. James's representative at the work site, and second, that the contractual indemnity clause is void and unenforceable pursuant to General Obligations Law § 5-322.1.
To establish a claim for common law indemnification, "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident or . . . had the authority to direct, supervise, and control the work giving rise to the injury" ( Perri v. Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [internal quotation marks and citations omitted]).
Although the evidence does leave unclear the exact involvement of defendant St. James's representative, we have already found that neither St. James nor its representative exercised any actual control or supervision over the work that led to the accident. While the St. James's employee testified that she did not know whether anyone from St. James ever directed or controlled Barr employees, the Barr employee and the plaintiff both testified that Barr employees were in charge of the work and took no direction or instruction from anyone from St. James. Thus, defendant St. James has shown that it was not a contributor to the accident here.
However, at this point, there has been no finding of any negligence on anyone's part, including defendant Barr. Moreover, it has not been shown that Barr itself (and not, for example, a third party) had actual control over the conditions that may have violated Labor Law § 241 (6) and/or gave rise to the accident in this case. Therefore, summary judgment on common law indemnification would be premature at this point.
The contractual provision in question provides in relevant part: "3.18.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner . . . from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work . . . but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. . . ."
Defendant Barr argues that this clause is unenforceable pursuant to General Obligations Law § 5-322.1, which prohibits indemnification agreements that require a contractor to indemnify the owner for its own negligence. Because this indemnity provision applies even if the claim is "caused in part by a party indemnified hereunder," it could be read to require Barr to provide indemnification for the negligence of St. James in violation of Section 5-322.1 ( see Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 NY2d 786, 795). However, the challenged clause also contains the requisite language limiting the contractor's obligation to that "permitted by law" and is thus enforceable ( see McGuinness v. Hertz Corp., 15 AD3d 160, 161-162; Dutton v. Pankow Bldrs., Ltd., 296 AD2d 321, 322).
Because the clause in question limits Barr's liability to its own "negligent acts or omissions," summary judgment based on the contractual indemnification would be premature since there has been no finding of negligence by defendant Barr. However, defendant St. James is entitled to its request for conditional contractual indemnification.
Conclusion
Plaintiff's cross motion for leave to amend her bill of particulars to include 12 NYCRR 23.3-3 (c) as part of her Labor Law § 241 (6) claim is granted. That part St. James's motion for summary judgment seeking dismissal of plaintiff's Labor Law § 200 claim is granted, but that part seeking dismissal of plaintiff's Labor Law § 241 (6) claim is denied, and plaintiff's claim is severed accordingly. Finally, St. James's motion for summary judgment granting common law and contractual indemnification is denied as premature, but its motion for conditional contractual indemnification is granted.
This constitutes the decision and order of the court.