Opinion
108060/01.
Decided May 17, 2005.
In this action to recover monetary damages for plaintiff Russell Sforza's (Sforza) alleged workplace injuries, Motion sequence numbers 003 and 004 are consolidated for disposition.
On March 5, 2000, Sforza, an electrician in the employ of third-party defendant/third third-party defendant Guardian, was allegedly injured while marking the walls in an Amtrak tunnel in Long Island City, Queens, New York. According to plaintiffs, Sforza was working in the Queens side of the tunnel, preparing it for the stringing of Verizon's fiber optic telephone cables. While Sforza was walking on the tunnel bench wall, he stepped into a defective portion, and fell six feet to the track level below. The complaint alleges that Sforza sustained back, rib, leg, and foot injuries.
According to plaintiffs, Sforza had been driven into the tunnel in a truck owned by general contractor, Oronzio Contracting, which also contained Amtrak employee/passengers. Plaintiffs allege that one Amtrak employee was with Sforza, protecting him, at the time of his accident.
Defendants seek summary judgment dismissing plaintiffs' complaint against them. To obtain summary judgment, a movant must establish entitlement to a courts directing judgment in its favor as a matter of law. See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Because summary judgment is a drastic remedy, it should not be invoked where there is any doubt as to the existence of a triable issue or when the issue is even arguable. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).
Under Labor Law § 240 (1), owners, general contractors, and construction managers who fail to provide or erect the safety devices necessary to give proper protection to a worker involved in the erection, demolition, repair, alteration, painting, cleaning or pointing of a building or structure are absolutely liable when that worker sustains injuries proximately caused by that failure. See Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991); see also Rizzo v. Hellman Elec. Corp, 281 AD2d 258 (1st Dept. 2001).
However, the extraordinary protections of Labor Law § 240(1) apply only to a narrow class of dangers, i.e., where the hazards are related to gravity's effects, "where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." Rocovich v. Consolidated Edison Co., supra at 514; see also Groves v. Land's End Housing Co., Inc., 80 NY2d 978 (1992).
"Proximate cause is demonstrated where the plaintiff generally shows that the defendant's negligence was a substantial cause of the events that produced the injury." Rodriguez v. Forest City Jay St. Assocs., 234 AD2d 68, 69 (1st Dept. 1996). Sforza's testimony that he fell when he stepped in a deteriorated part of the bench wall ( see Sforza's EBT, at 31) sets forth a prima facie claim under Labor Law § 240 (1), which shifts the burden to the defendants to submit evidence to raise a question of fact warranting trial. See Wasilewski v. Museum of Modern Art, 260 AD2d 271 (1st Dept. 1999). The defendants claim that Sforza may have been out ahead of the truck which was the device used to protect the workers and provide illumination. They further claim that Sforza had been told not to work so far ahead of the truck, but had disregarded this instruction. This argument, which suggest that plaintiff was a "recalcitrant worker," raises a triable issue of fact sufficient to preclude summary judgment for any party. "The recalcitrant worker defense is . . . limited to circumstances where a worker is injured as a result of his/her refusal to use available safety devices." Landgraff v. 1579 Bronx River Ave., LLC, 15 AD3d 200, 202 (1st Dept. 2005). Because evidence has been proffered to show that Sforza may have disobeyed specific instructions to avoid working on the bench wall ahead of the truck ( see EBT testimony of both DiFeo and Biehner), this issue may not be determined as a matter of law. See Cahill v. Triborough Bridge Tunnel Authority, 4 NY3d 35 (2004); Palacios v. Lake Carmel Fire Dept. Inc., 15 AD3d 461 (2nd Dept. 2005); Walls v. Turner Const. Co., 10 AD3d 261 (1st Dept. 2004).
Plaintiff argues that this defense is not applicable here since there is no proof he was told to stay near the truck or work on the truck immediately before the accident. However, this argument turns on a very narrow and inaccurate reading of the deposition testimony. Defendants have proffered sufficient evidence to raise a question of fact as to whether on several occasions, including during the job briefing on the night of the accident, plaintiff was warned to avoid walking ahead of the truck. Contrary to plaintiffs argument in this motion, it is a question of fact as to whether Mr. DiFeo was authorized to issue such a direction, and whether plaintiff would have been obligated to follow it. In light of the defendants arguments which raise a legitimate question as to whether plaintiffs alleged disregard of these safety directions was the sole proximate cause of his accident, summary judgment is denied as to the Labor Law § 240(1) claim.
Verizon, SMSA, and Cellco seek dismissal of plaintiffs' common-law negligence and Labor Law § 200 claims as against them. For the reasons stated below, plaintiffs' common-law negligence claims as against Verizon, SMSA, and Cellco are dismissed. To establish a prima facie case of common-law negligence, a plaintiff is required to establish that: (1) a defendant either created or had notice of the alleged dangerous or defective condition, and (2) that the alleged dangerous condition was the proximate cause of the injury. See Pouso v. City of New York, 177 AD2d 560 (2nd Dept 1991). To make out a valid common-law negligence claim against an owner or contractor in the context of a Labor Law case, there must be evidence that the owner or contractor had actual or constructive notice of an injury-causing unsafe condition. See Higgins v. 1790 Broadway Assocs., 261 AD2d 223 (1st Dept. 1999); Balaj v. Equitable Life Assur. Soc. of U.S., 211 AD2d 487 (1st Dept. 1995). There has been no evidence proffered that Verizon, SMSA, and Cellco had prior actual notice that the bench wall was deteriorated or that Verizon, SMSA, and Cellco caused the alleged defective condition.
"To constitute constructive notice, a defect must be visible and apparent[,] and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon v. American Museum of Natural History, 67 NY2d 836, 837 (1986). Additionally, constructive notice "must be of the specific condition and of its specific location." Canning v. Barney's New York, 289 AD2d 32, 33 (1st Dept. 2001). Plaintiffs have not proffered any evidence to show that the specific hole in the bench wall into which Sforza allegedly stepped was visible and apparent, or that Verizon was on the property so that they could remedy the condition.
An owner or general contractors common-law duty to maintain a safe workplace under the common-law is codified in Labor Law § 200. See Gasper v. Ford Motor Co., 13 NY2d 104 (1963). However, supervision and control of the injured worker's methods by an owner or contractor are prerequisites to liability under Labor Law § 200. See Candela v. City of New York, 8 AD3d 45 (1st Dept. 2004); see also Comes v. New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993); Mitchell v. New York University, 12 AD3d 200 (1st Dept. 2004). According to Guardian ( see Alfred Khazzam EBT, at 114-115), Amtrak directed Sforza at the job site. No evidence has been proffered to show, however, that Verizon, SMSA, and Cellco had any supervisory duties in the tunnel. Therefore, that part of Verizon, SMSA, and Cellco's motion that seeks dismissal of plaintiffs' Labor Law § 200 claims is granted.
Verizon, SMSA, and Cellco seek to dismiss plaintiffs Labor Law § 241 (6) claims. According to plaintiffs' Bill of Particulars, those claims are predicated upon violations of various OSHA sections, and Industrial Code sections 12 NYCRR 23-1., 23-1.7, and 23-1.30.
Labor Law § 241 (6) provides that "[a]ll 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 section requires owners and contractors at a construction site to Aprovide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502 (1993).
This court must determine whether liability premised upon Labor Law § 241 (6) may be found as against Verizon, SMSA, and Cellco, as the owner's agents. A Only a violation of the State Industrial Code and regulations promulgated by the State Commissioner of Labor may serve as a basis for liability under that statutory section." Heller v. 83rd Street Investors Ltd. Partnership, 228 AD2d 371, 372 (1st Dept. 1996); see also Messina v. City of New York, 300 AD2d 121 (1st Dept. 2002). Alleged violations of OSHA regulations cannot serve as a predicate to liability under Labor Law § 241 (6). Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 351 (1998).
Plaintiffs are required to set forth any sections of the Industrial Code that they contend are predicates for liability. See Reilly v. Newireen Associates, 303 AD2d 214, 218 (1st Dept. 2003). In their Bill of Particulars, plaintiffs have set forth three sections of the Industrial Code that they allege are applicable to the facts herein and were the proximate cause of Sforza's injuries.
General provisions of the Industrial Code, which do not mandate compliance with concrete specifications, are insufficient to support claims under Labor Law § 241 (6). Ross v. Curtis-Palmer Hydro-Electric Co., supra; Hawkins v. City of New York, 275 AD2d 634 (1st Dept. 2000). The first regulation that plaintiffs cite to support their Labor Law § 241 (6) claims is 12 NYCRR 23-1.5, which sets forth the general responsibilities of employers, and requires "reasonable and adequate" protection, as well as that machinery be kept in "good repair" and "safe." Those "generic directives . . . are insufficient as predicates for section 241 (6) liability." Maldonado v. Townsend Ave. Enterprises, 294 AD2d 207 (1st Dept. 2002).
Plaintiffs next allege that Verizon, SMSA, and Cellco violated subsections (b)(1), (d) and (e)(1) and (2) of 12 NYCRR 23-1.7. Subsection (b)(1), which requires protection for every person who works near the edge of every hazardous opening, has been held to be sufficiently concrete to serve as a predicate for a Labor Law § 241 (6) claim. See Olsen v. James Miller Marine Service, Inc., 16 AD3d 169 (1st Dept. 2005). Subsection (d), which concerns slipping hazards, is not applicable to the facts of this case, in that Sforza does not allege that the bench wall was in a slippery condition.
Subsection (e)(1) is also not applicable to the facts of this case, as Sforza was not working in a passageway that had an accumulation of dirt or debris that could cause tripping. Although section 23-1.7 (e)(2), which also concerns regulations regarding tripping hazards, is sufficiently concrete to support a Labor Law § 241(6) claim, that subsection is not applicable, as there is no allegation here that Sforza tripped on dirt or debris or other obstructions in his work area.
Finally, plaintiffs assert violations of 12 NYCRR 23-1.30 to support their Labor Law § 241 (6) claims. That section states that "illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work." This Industrial Code section has previously been held to be sufficiently concrete to support a Labor Law § 241 (6) claim. Murphy v. Columbia University, 4 AD3d 200 (1st Dept. 2004). Because an allegation that Verizon, SMSA, and Cellco failed to provide sufficient illumination is central to plaintiffs' claims, this court finds that section 23-1.30 may serve as a predicate to plaintiffs' Labor Law § 241 (6) claim. Therefore, that portion of Verizon, SMSA, and Cellco's motion that seeks to dismiss plaintiffs' Labor Law § 241(6) claims is denied.
J.T. Oronzio Electrical Contracting Inc. seeks summary judgment dismissing the claims against it, relying primarily on the motion of the second third-party defendant Samson Contracting Services Corp. Samson argues that it could not be held liable on any claims of contractual indemnification since its contract was with an entity named J.T. Oronzio General Contracting, not J.T. Oronzio Electrical Contracting Inc. The Court is persuaded by Samson's arguments, which are supported by the actual contract, and the claims in the second third party action involving contractual indemnification are dismissed against them. Samsons motion to dismiss the remaining claims against them also is granted. The evidence here shows that they did not employ the plaintiff, were not responsible for supervising the plaintiffs work and were not responsible for providing any of the safety equipment to the plaintiff. J.T. Oronzios arguments concerning Samson turn on the alleged connection between Guardian and Samson, discussed later in this decision. However, Oronzio's argument is not borne out of evidence or the deposition testimony, which shows the two entities are separate. In any event, even if there were some evidence that Samson had an oversight role over the Guardian employees working at the site, this general duty to supervise is insufficient to establish common law indemnification. See Fraioli v. St. Joseph's Seminary, 1 AD3d 280 (1st Dept. 2003).
However, J.T. Oronzios summary judgment motion seeking dismissal of the plaintiffs claims against them is denied. The mere fact that they may not have been named in the contract with Samson is insufficient to meet their burden of establishing that they did not act as the general contractor on this job and did not exercise supervisory authority or control over the work at issue here. First, J.T. Oronzio Electrical Contracting brought two third party actions against other participants in this job. Their commencement of these actions is difficult to reconcile with the current claim that they had no involvement in the project. Of greater significance, they produced Michael DiFeo as a witness on their behalf, and he described in great detail his role in the project. Mr. DiFeo did not testify that he had no connection to J.T. Oronzio Electrical Contracting Inc., or that he worked for some other entity. In fact, he offered detailed testimony as to the role he performed on this project on behalf of "J.T. Oronzio."
The Court does not dispute that Mr. DiFeos testimony was vague as to the exact entity he worked for. He stated that J.T. Oronzio Electrical Contracting J.T. Oronzio General Contracting used different names depending on what project they were working on, but did not elaborate as to which entity actually was working on this project or what the ownership/management structure was between the two entities. Such vague testimony is insufficient to establish that J.T. Oronzio Electrical, the named party here, had no connection to this project or to establish that Mr. DiFeo was not acting, in some capacity, on J.T. Oronzio Electrical's behalf. It is important to note that J.T. Oronzio Electrical Contracting Inc. does not offer any documents, such as certificates of incorporation, that would establish that the two entities were entirely separate corporations or that would show they had no legal connection with each other. Thus, the Court finds that J.T. Oronzio has failed to meet their burden on this motion, and their request for summary judgment dismissing the complaint against them is denied.
Plaintiffs cross-motion to amend the complaint, at this late stage, to add J.T. Oronzio General Contracting also is denied. First, the Court notes that this motion is being made on the eve of trial, months after the note of issue was filed. At a minimum, plaintiff was aware that J.T. Oronzio Electrical and J.T. General Contracting were different entities when the discovery responses were provided in October 2003. Mr. DiFeos deposition shortly thereafter further highlighted this issue because he testified that the entities used different names. Yet, plaintiff inexplicably waited almost a year to make this cross-motion to amend. Plaintiff offers no persuasive explanation for his failure to make this request prior to the conclusion of discovery, or even right after the note of issue was filed.
The defendants opposing the motion properly noting that granting of this motion would require the Court to open up discovery and would significantly delay the trial. Furthermore, if the motion were granted, the defendants would have to serve additional cross-claims and obtain copies of any contracts with J.T. Oronzio General Contracting, to the extent they have not already been exchanged. Adding a party now would be particularly burdensome because of the complex indemnification issues in this case. In the absence of any explanation for plaintiffs delay, the Court, in its discretion, denies the motion to amend.
The Court also notes that plaintiffs request is barred by the statute of limitations and cannot be saved by the relation-back doctrine. Here, the plaintiff has failed to meet its burden of establishing that the two J.T. Oronzio entities are united in interest, a critical element of the doctrine. See Opiela v. May Industries Corp., 10 AD3d 340 (1st Dept. 2004). In fact, absolutely no evidence has been presented as to the corporate structure of the two companies or the exact extent to which they have overlapping corporate officials. Certainly, plaintiff has not established that one entity would be vicariously liable for the other, or that the entities were alter egos. See Scoma v. Doe, 2 AD3d 432 (2nd Dept. 2003). Although Mr. DiFeo indicated at his deposition that there were two separate companies J.T. Oronzio Electrical Contracting Inc. and J.T. Oronzio General Contracting he did not explain how they each related to the project at issue here, or exactly how they related to each other. Thus, the Court denies the plaintiff's motion both because it is being made on the eve of trial and because plaintiff failed to meet his burden of establishing unity of interest between the two entities.
Guardians motion to dismiss the third-party action brought against them by J.T. Oronzio Electrical Contracting is granted. The evidence shows that Guardian was plaintiffs employer and there is no claim of grave injury in this case. The Court is not persuaded by the arguments proffered by J.T. Oronzio in support of its position that there is an issue of fact as to the identity of plaintiffs employer. Here, Guardian not only provided workers compensation benefits to plaintiff after this accident, but the W-2s issued to plaintiff, which are included with the motion papers, show that he was employed by Guardian. See Sorrentino v. Ronbet Co., 244 AD2d 262 (1st Dept. 1997).
The fact that Mr. Sforza may have worked for Samson at some other time is not significant since the plaintiff testified he worked for Guardian on this project. Similarly, the fact that there is some family relationship between the head of Samson and Guardian does not alter the fact that the two are separate entities. Indeed, the deposition testimony of Mr. Alfred Kazzam, on which Oronzio relies, established that the Alfred Kazzam had no legal connection to Samson. Oronzio's other arguments in opposition to Guardians motion are based on speculation or are not convincing.
Samson's motion seeking a conditional order of indemnification against Guardian is granted. No question exists that Sforza worked for Guardian and that this accident arose of Guardian's work or operations. Since there is no evidence that plaintiff's accident was attributable to any negligence on Samson's part, they properly should be awarded a conditional judgment of indemnification. See Warnett v. A.J.Pegno Construction Corp., 1 AD3d 207 (lst Dept. 2003); Reilly v. Newireen Associates, 303 AD2d 214 (lst Dept. 2003).
Common-law indemnity can be had against a wrongdoer only by one who is vicariously liable. See Curley v. Gateway Communications, Inc., 250 AD2d 888 (3rd Dept. 1998). Except as to Samson, at this point, it is not clear who, if anyone, was the wrongdoer, and a determination of common-law indemnification is premature. Evidence has been presented in these motions and cross-motions that raise questions as to the possible negligence, and degree of supervision of the plaintiff's actions, by the originally named defendants and by Amtrak. Therefore, that portion of Verizon, SMSA, and Cellco's motion that seeks common-law indemnification is denied. Any request by Amtrak for contractual indemnification from J.T. Oronzio Electrical also must be denied since no evidence has been offered as to any contract with J.T. Oronzio Electrical.
Verizon, SMSA, and Cellco further seek contractual indemnification as against Amtrak, Guardian, and Samson. However, movants have not proffered any contracts with their motion papers that indicate that they are entitled to such relief. Therefore, that portion of Verizon, SMSA, and Cellco's motion that seeks contractual indemnification as against Amtrak, Guardian, and Samson is denied.
In conclusion, the portion of the motions by Verizon, SMSA and Cellco seeking dismissal of the Labor Law § 200 claims against them is granted, the motion by Guardian to dismiss the third-party action brought against them by J.T.Oronzio Electrical Contracting is granted, the motion by Samson to dismiss the third party action brought against them by J.T. Oronzio Electrical Contracting is granted, the motion by Samson seeking a conditional judgment of indemnification against Guardian is granted, and the remainder of the motions and cross-motions are denied.
This constitutes the decision and order of the Court.