Opinion
Index 12355/14
01-12-2022
Ivan Volgassov, Plaintiff, v. Silverstein Properties, Inc., 4 World Trade Center LLC, Tishman Construction Corporation, Turner Construction Company, Tishman/Turner A Joint Venture, Port Authority of New York and New Jersey, Clarkwestern Dietrich Building Systems LLC, Park Avenue Building & Roofing Supplies, Inc., Park Avenue Building & Roofing Supplies, LLC, and Navarro Trucking LLC, Defendants,
Unpublished Opinion
PRESENT: HON. KAREN B. ROTHENBERG, Justice.
Karen B. Rothenberg Judge
The following e-filed papers read herein: NYSEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 4-5, 45, 48, 54-55, 84-85, 91, 92-93, 118-119, 155, 167, 207, 209
Opposing Affidavits (Affirmations) 51, 167, 169, 170, 172, 174, 175, 176, 177, 215, 221, 293, 298, 301, 303, Affidavits/ Affirmations in Reply 178, 179, 180, 187, 189, 190, 191, 196, 197, 292, 294, 296, 300, Other Papers Plaintiff's Exhibit 33 (DVD Video)
The DVD was submitted directly to the court. Counsel for plaintiff, in a letter to the court dated May 19, 2021 (NYSCEF Doc. No. 293), represents that he was unable to upload the video files contained on the DVD onto NYSCEF.
Upon the foregoing papers, defendants Silverstein Properties, Inc. (Silverstein), 4 World Trade Center LLC (4WTC), Turner Construction Company (Turner) and Port Authority of New York and New Jersey (Port Authority) (collectively referred to as the World Trade Center Defendants) move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and granting them summary judgment in their favor on their common-law indemnification claims (motion sequence "mot. seq." 9).
Defendants Tishman Construction Corporation (Tishman) and Tishman/Turner A Joint Venture (Tishman/Turner) moves for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and all cross claims asserted against them (mot. seq. 10).
Defendant Navarro Trucking LLC (Navarro) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint as against it (mot. seq. 11).
Defendant Clarkwestern Dietrich Building Services LLC (Clarkwestern) moves for an order: (1) pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all cross claims as against it; (2) pursuant to CPLR 3025 (b), granting it leave to amend its answer to assert crossclaims for contractual indemnification and for breach of contract for failure to obtain insurance as against Navarro; and (3) pursuant to CPLR 3212, granting it summary judgment in its favor on its cross claims for contractual indemnification and breach of contract for failure to obtain insurance (mot. seq. 12).
Plaintiff cross-moves for an order, pursuant to CPLR 3212, granting him partial summary judgment in his favor as against defendants Port Authority, Silverstein, 4WTC, Tishman, and Turner with respect to his Labor Law § 240 (1) cause of action, with respect to his Labor Law 241 (6) cause of action premised on violations of 12 NYCRR 23-1.7 (f) and 12 NYCRR 23-9.8 (h), and with respect to his common-law negligence and Labor Law § 200 causes of action (mot. seq. 13).
The World Trade Center Defendants' motion (mot. seq. 9) is granted only to the extent that plaintiff's Labor Law § 241 (6) cause of action is dismissed as against them and the Labor Law § 200 cause of action is dismissed to the extent that is premised on a dangerous property condition theory of liability. Their motion is otherwise denied.
Tishman and Tishman/Turner's motion (mot. seq. 10) is granted and the complaint and all cross claims against them are dismissed, the action is severed accordingly, and the clerk is directed to enter judgment accordingly.
Navarro's motion (mot. seq. 11) is granted to the extent that plaintiff's causes of action premised on Labor Law §§ 200, 240 (1), and 241 (6) are dismissed as against it. Navarro's motion is otherwise denied.
Clarkwestern's motion (mot. seq. 12) is granted to the extent that plaintiff's causes of action premised on Labor Law §§ 200, 240 (1), and 241 (6) are dismissed as against it and to the extent that it is granted leave to amend its answer to assert a cross claim for contractual indemnification as against Navarro. Clarkwestern's motion is otherwise denied.
As Clarkwestern seeks no affirmative relief with respect to contribution and common-law indemnification claims as against Navarro, this court makes no determination as to whether Clarkwestern has existing claims for such relief against Navarro. In this respect, this court also makes no determination as to which answer submitted on the behalf of Clarkwestern is operative (i.e., the answer, dated November 7, 2014, prepared on its behalf by Wood Smith Henning & Berman, LLP, dated November 7, 2014 [NYSCEF doc. no. 122], or the answer, dated October 22, 2014, prepared on its behalf by Clarkwestern's current counsel [NYSCEF doc. no. 171]).
Plaintiff Ivan Volgassov's motion (mot. seq. 13) is denied.
In view of the dismissal of the action as against Tishman and Tishman/Turner, and in view of the stipulation, dated July 7, 2020, discontinuing the action as against defendants Park Avenue Building & Roofing Supplies, Inc., and Park Avenue Building & Roofing Supplies, LLC, with prejudice, the caption is amended to read as follows:
Ivan Volgassov, Plaintiff,
-against-
Silverstein Properties, Inc., 4 World Trade Center LLC, Turner Construction Company, Port Authority of New York and New Jersey, Clarkwestern Dietrich Building Systems LLC, and Navarro Trucking LLC, Defendants,
Index No.: 12355/14
Background
In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff Ivan Volgassov alleges that he was injured on March 26, 2014, when, while standing on a flatbed trailer helping unload drywall framing and track, he cut a strap securing drywall track to a skid, and pieces of the drywall track fell off the skid onto plaintiff, pushing him off the side of the truck onto the ground. At the time of the accident, the flatbed trailer was parked at a loading dock at 4WTC's building, which was then under construction. Port Authority was the owner of the premises, which it leased, pursuant to a 99-year lease, to 4WTC. Silverstein was an affiliate of 4WTC. 4WTC hired Tishman as the general contractor for building the core and shell the building, which work also encompassed the construction of the temporary loading dock at issue. 4WTC also hired Turner to act as the general contractor for the interior buildout of several floors of the building and Turner, in turn, subcontracted with plaintiff's employer, non-party Jacobson & Company, Inc. (Jacobson), to install drywall and ceilings. The drywall framing material, which was ordered by Jacobson, was manufactured by Clarkwestern and was delivered to the construction site by Nazarro, a trucking company with which Clarkwestern had a long-term contract for delivering its products.
Also referred to as a "band" by some witnesses in their deposition testimony.
Silverstein's exact role in the project is not fully detailed in the record. Silverstein's witness testified at her deposition that both Silverstein and 4WTC were both owned by Larry Silverstein.
It is undisputed that the work that the Tishman/Turner joint venture performed at the World Trade Center site was unrelated to the work at issue in this action.
Jacobson ordered the drywall framing material through either defendant Park Avenue Building & Roofing Supplies, Inc., or defendant Park Avenue Building & Roofing Supplies, LLC. Those entities, however, played no role in the packaging, loading or delivery of the materials.
On the morning of the accident, plaintiff, who was employed by Jacobson as a carpenter, was installing tracks in the ceiling of one of the floors on which Jacobson was working when he was instructed to assist with the unloading of drywall studs and drywall track from a flatbed trailer. When plaintiff reached the Liberty Street loading dock, the flatbed trailer was already parked at the loading dock with the rear of the trailer abutting the loading dock platform. At that time, the truck driver had already taken off the straps securing the skids of material to the trailer, but the straps securing the studs or track to the skids were still in place. The loading dock had no platform along the side of the trailer, the bed of which, according to plaintiff, was approximately five feet above the ground.Since Turner had informed Jacobson that it could not use forklifts in the street to unload material from the delivery trucks, plaintiff and his coworkers unloaded the trailer by cutting the straps securing the studs or track to the skids, hand carrying the studs and track off the trailer to A-frame carts sitting on the loading dock platform, and then rolling the carts to the material lift to the floors on which Jacobson was working.
William Myer, P.E., in an affidavit submitted by the World Trade Center Defendants, represents that he measured the height of the bed of the trailer from the ground, and a photograph of his measurements shows the height to be 57 inches.
It is not entirely clear from the deposition testimony of the witnesses why a forklift could not ride directly onto the rear of the truck from the loading dock platform. Plaintiff's testimony regarding the size of the loading dock platform, and the sharp turn on the ramp to the material lifts, however, suggest that the loading dock platform and ramp may simply not have been large enough to accommodate a forklift.
After plaintiff and his coworkers had unloaded several skids in this manner, plaintiff then went to cut the straps securing a skid of drywall track that was located near the front (cab end) of the trailer. In order to reach the straps, plaintiff walked along the edge of the trailer, facing the skid, and his back to the sidewalk side of the trailer. Plaintiff cut the first two straps without incident, but when he cut the third strap, some bundles of the track pieces came off the skid and pushed plaintiff off the side of the trailer as the track pieces fell to the ground. Although plaintiff landed on his feet on the sidewalk next to the truck, his back struck a parking bollard as he fell. The track pieces that struck plaintiff were located near the top of a skid, which was at the same level as plaintiff's chest, a height that plaintiff, in his deposition testimony, estimated to be five feet above the trailer bed.
Based on the deposition testimony of Shane Ouellette, a Jacobson supervisor, and Charles Hahn, Clarkwestern's deposition witness, it is evident that plaintiff was not struck by individual pieces of drywall track, but rather, by bundles of track each made up of six pieces of track.
Plaintiff's testimony is largely consistent with the video of the accident taken by a security camera.
At his deposition, plaintiff testified that after the accident he observed that the dunnage - wooden pieces placed around the drywall track by Clarkwestern to help hold the track in place on the skid - appeared to be missing from the skid at issue. At his deposition, Thomas DePrima, a Jacobson shop steward who was standing on the truck at the time of the accident, asserted that the dunnage on the skid appeared to have been improperly placed. Both plaintiff and DePrima stated that the issue with the dunnage could have contributed to the drywall track falling when the straps were released. Shane Ouellette, a Jacobson supervisor, testified that, after the accident, he noticed that the pieces of drywall track that fell off of the truck appeared to be bent, suggesting to him that the straps used by the truck driver to hold the skids of track onto the trailer were too tight, which he believed would have caused the track bundles to come loose when plaintiff cut the straps. Ouellette believed this possible cause of the accident was supported by a photograph that, according to Ouellette, shows dunnage out of kilter, which he believes likely happened because the skid of drywall track was strapped too tightly onto the truck.
Clarkwestern's witness, Charles Hahn, provided detailed testimony regarding the size and weight of the drywall track at issue. Hahn testified that the packing slip for the delivery at issue showed that there were two skids of drywall track on the flatbed. According to Hahn each piece of track was 10 feet long, and one of the skids was loaded with 150 pieces of two-and-one-half-inch track with a two-inch leg that weighed 669 pounds in total and another skid loaded with 200 pieces of three-and-five-eighth-inch track with one-and-one-quarter-inch leg that weighed 840 pounds in total. Hahn added that the pieces of track were bundled in six-piece units, which, based on the total weight of each kind of track on the respective skids, would have weighed 26.76 pounds for each bundle of the two-and-half-inch track, and 25.2 pounds for each bundle of the three-and-five-eighth-inch track.
Based on the deposition testimony of Clarkwestern and Navarro's witness, it is apparent that it was Clarkwestern that packed the bundles of wallboard track onto the skid, placed the dunnage around the track on the skid, strapped the track onto the skid and loaded the skids onto the flatbed trailer. Navarro's driver, however, would have been the one to inspect the load and attach the straps to hold the skids onto the trailer during the delivery. Similarly, it would have been the driver who would have removed the straps holding the skids onto the trailer at the delivery site.
Discussion
Consideration of Plaintiff's Motion and Opposition Papers
Initially, defendants are correct that plaintiff's cross motion, which was not made until April 27, 2021, is untimely under Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6, as it was made more than 60 days after the filing of the note of issue on February 28, 2020 (see Goldin v New York & Presbyt. Hosp., 112 A.D.3d 578, 579 [2d Dept 2013]; CPLR 3212 [a]). Since defendants, however, have already timely moved for summary judgment with respect plaintiff's causes of action under the common-law and Labor Law §§ 200 and 240 (1), and the Labor Law § 241 (6) cause of action to the extent it is premised on 12 NYCRR 23-9.8 (h), this court may properly consider the portion of plaintiff's cross motion seeking summary judgment in his favor on those claims (see Sikorjak v City of New York, 168 A.D.3d 778, 780 [2d Dept 2019]; Sheng Hai Tong v K & K 7619, Inc., 144 A.D.3d 887, 890 [2d Dept 2016]; Derrick v North Star Orthopedics, PLLC, 121 A.D.3d 741, 743 [2d Dept 2014]; Wernicki v Knippert, 119 A.D.3d 775, 776 [2d Dept 2014]; Paredes v 1668 Realty Assoc., LLC, 110 A.D.3d 700, 702 [2d Dept 2013]). The court, however, will not consider plaintiff's motion as it relates to his Labor Law § 241 (6) cause of action to the extent that it is premised on 12 NYCRR 23-1.7 (f). This is because defendants did not address that section (which was not alleged in plaintiff's bill of particulars or supplemental bills) in their respective motions (see Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp., 161 A.D.3d 691, 691-692 [1st Dept 2018]; Sheng Hai Tong, 144 A.D.3d at 890; Paredes, 110 A.D.3d at 702) and because plaintiff has otherwise failed to make any factual or legal arguments suggesting that he has good cause for his delay in moving (see Sheng Hai Tong, 144 A.D.3d at 890; Goldin, 112 A.D.3d at 579).
Although each of defendants' respective motions were made more than 60 days after the filing of the note of issue, each of their respective motions are timely in view of the Executive Orders tolling court deadlines because of the Covid-19 pandemic from mid-March until November 3, 2020 (see Brash v Richards, 195 A.D.3d 582, 583-585 [2d Dept 2021]).
The court additionally finds that it will consider plaintiff's cross motion and opposition papers despite the fact that they were not filed on April 26, 2021 as was required by the March 19, 2021 scheduling order. In this regard, plaintiff's papers were efiled and served at 2:40 a.m. on April 27, 2021, only hours after the deadline, plaintiff's counsel has explained that the delay was the result of an issue with his scanner that prevented him from scanning the documents on the 26th, and defendants suffered no conceivable prejudice as the result of plaintiff's delay in that the scheduling order gave them until June 9, 2021 to submit opposition papers (see Skillings v City of New York, 173 A.D.3d 799, 800-801 [2d Dept 2019], appeal dismissed 34 N.Y.3d 1088 [2020], cert denied US, 141 S.Ct. 1745 [2021]; Hsu v Shields, 111 A.D.3d 674, 674 [2d Dept 2013]; Bakare v Kakouras, 110 A.D.3d 838, 839 [2d Dept 2013]; CPLR 2001, 2004). Plaintiff's additional delay in serving the exhibits to the motion papers is immaterial as most, if not all, of those exhibits had previously been provided to the court by the defendants through their respective motion and opposition papers.
Tishman/Turner
In moving, Tishman/Turner has submitted evidentiary proof demonstrating, prima facie, that the work of the Tishman/Turner joint venture was entirely unrelated to the premises, construction work, and material delivery at issue in this action. As such, in the absence of any opposition from any party in this regard, Tishman/Turner is entitled to the dismissal of the complaint and any cross claims as against it.
Labor Law Defendants
Tishman seeks summary judgment dismissing plaintiff's causes of action premised on Labor Law §§ 200, 240 (1) and 241 (6) on the ground that it is not a proper Labor Law defendant. As a general rule, a separate prime contractor is not liable under Labor Law §§ 200, 240 or 241 for injuries caused to the employees of other contractors with whom they are not in privity of contract, so long as the contractor has not been delegated the authority to oversee and control the activities of the injured worker (see Russin v Louis N. Picciano & Son, 54 N.Y.2d 311, 317-318 [1981]; Knab v Robertson, 155 A.D.3d 1565, 1566 [4th Dept 2017]; Giovanniello v E.W. Howell, Co., LLC, 104 A.D.3d 812, 813-814 [2d Dept 2013]; Delanoy v City of White Plains, 83 A.D.3d 773, 774 [2d Dept 2011], leave dismissed 17 N.Y.3d 881 [2011]; Barrios v City of New York, 75 A.D.3d 517, 518 [2d Dept 2010]; Everitt v Nozkowski, 285 A.D.2d 442, 443-444 [2d Dept 2001]). However, where a separate prime contractor has been delegated the authority to supervise and control the plaintiff's work, the contractor "becomes a statutory 'agent' of the owner or general contractor" (Russin, 54 N.Y.2d at 318; see Walls v Turner Constr. Co., 4 N.Y.3d 861, 863-864 [2005]; Barrios, 75 A.D.3d at 518).
In moving, Tishman relies on the undisputed fact that Tishman and Turner were each hired directly by 4WTC. Tishman also submits the deposition testimony of Dean Essen, its general superintendent/vice president, who stated that Tishman was responsible for the construction of the shell and core of the building at 4 World Trade Center, that, by the end of 2013 and early 2014, Tishman's work, other than a few punch list items, was essentially finished, that it had obtained a temporary certificate of occupancy by that time, and that Tishman's authority only extended to its work and that of its own subcontractors. Although the loading dock was constructed by Tishman's subcontractor Regional Scaffolding and Hoisting Co., Inc., (Regional) sometime in late 2013 or early 2014, Essen asserts that it was Turner, the build-out contractor for the interior, that had full control over the loading dock after it was built. Similarly, Sean McNeary, Turner's safety manager, testified that Turner was the general contractor for interior build-out work on 12 to 14 floors of the building, that Turner hired its own subcontractors for this work, that Tishman had no workers on the jobsite during the time he (McNeary) was there, and that he had no interaction with Tishman. Shane Ouellette, Jacobson's general foreman, similarly testified that, by the time Jacobson started its interior work, Tishman's phase on the project was complete, that he had no interaction with Tishman and that he had received no instruction from Tishman regarding how Jacobson should perform its work. Through this evidence, Tishman has demonstrated, prima facie, that it did not have authority to supervise and control plaintiff's work (see Russin, 54 N.Y.2d at 317; Knab, 155 A.D.3d at 1566; Bennett v Hucke, 131 A.D.3d 993, 995 [2d Dept 2015], affd 28 N.Y.3d 964 [2016]; Giovanniello v E.W. Howell, Co., LLC, 104 A.D.3d 812, 813-814 [2d Dept 2013]; Kelarakos v Massapequa Water Dist., 38 A.D.3d 717, 718 [2d Dept 2007]; Kwoksze Wong v New York Times Co., 297 A.D.2d 544, 548-549 [1st Dept 2002]; Lopes v Interstate Concrete, Inc., 293 A.D.2d 579, 579-580 [2d Dept 2002]).
Of note in this respect, Tishman's contract with 4WTC dated February 7, 2008 (Tishman Contract), provides that Tishman's supervisory responsibility over subcontractors relates to those hired by it (Tishman Contract § 3.2), and that substantial completion, "shall mean, with respect to the construction to be performed by the General Contractor on the Project, substantial completion of the core and shell improvements (i.e. base building) of the Building to the extent necessary to satisfy the conditions for issuance of a 'Temporary Permit to Occupy and Use" for such shell improvements" (Tishman Contract § 5.1).
Although plaintiff is correct that Tishman's contract with 4WTC required Tishman to supervise subcontractors, this supervision requirement was clearly limited to the supervision of subcontractors hired by it (see Tishman Contract § 3.2). Further, contrary to plaintiff's contention, the fact that Tishman's subcontractor built the loading dock does not make Tishman a Labor Law defendant since Tishman did not have authority to supervise or control the work of Turner or its subcontractors in their use of the loading dock (see DeSimone v City of New York, 121 A.D.3d 420, 421-422 [1st Dept 2014]; Poracki v St. Mary's Roman Catholic Church, 82 A.D.3d 1192, 1195 [2d Dept 2011]; Morales v Spring Scaffolding, Inc., 24 A.D.3d 42, 46 [1st Dept 2005]; Lopes, 293 A.D.2d at 579-580). Plaintiff, in opposition, has submitted no evidentiary proof showing that Tishman had the authority to supervise plaintiff's work at the time of the accident. As such, plaintiff has failed to demonstrate an issue of fact warranting denial of this aspect of Tishman's motion, and Tishman is thus entitled to dismissal of the Labor Law causes of action against it.
Navarro and Clarkwestern, in their respective motions, also assert that they are entitled to dismissal of the Labor Law causes of action as against them in that they are not owners, contractors or agents thereof for purposes of Labor Law §§ 240 (1) and 241 (6) and that they did not have authority to supervise plaintiff's work for purpose of Labor Law § 200. Here, it is undisputed that Clarkwestern's role was limited to manufacturing the track and studs, packing the skids, and loading them onto the flatbed trailer, and that Navarro's role was limited to transporting the material to the construction site. In view of their respective roles, and given that there no evidence in the record suggesting that either Clarkwestern or Navarro had any authority to supervise Jacobson's work, Clarkwestern and Navarro have each demonstrated their prima facie entitlement to dismissal of the Labor Law causes of action (see Ahern v NYU Langone Med. Ctr., 147 A.D.3d 537, 538 [1st Dept 2017]; Brownell v Blue Seal Feeds, Inc., 89 A.D.3d 1425, 1427-1428 [4th Dept 2011]; Gonzalez v Glennwood Mason Supply Co., Inc., 41 A.D.3d 338, 339 [1st Dept 2007]; Kocurek v Home Depot, U.S.A.P., 286 A.D.2d 577, 580 [1st Dept 2001]; Brooks v Harris Structural Steel, 242 A.D.2d 653, 653 [2d Dept 1997]). As plaintiff has not addressed this aspect of Clarkwestern and Navarro's motions, and has not submitted evidentiary proof demonstrating the existence of a factual issue in this respect, Clarkwestern and Navarro are entitled to summary judgment dismissing plaintiff's Labor Law causes as against them.
As the World Trade Center defendants raise no contention that they are improper Labor Law defendants, the court turns to whether plaintiff can otherwise make out his Labor Law claims as against them.
Labor Law § 240 (1)Labor Law § 240 (1) imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiff's injuries must be "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see Wilinski, 18 N.Y.3d at 10). For accidents involving falling workers, a worker's fall is generally, in an of itself, insufficient to demonstrate that proper protection was not provided (see O'Brien v Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 33 [2017]; Berg v Albany Ladder Co., Inc., 10 N.Y.3d 902, 903-904 [2008]; Torres v New York City Hous. Auth., 199 A.D.3d 852, 854 [2d Dept 2021]). Similarly, with respect to accidents involving falling objects, the "plaintiff must show more than simply that an object fell causing injury to a worker" (Narducci, 96 N.Y.2d at 268; see also Fabrizzi v 1095 Ave. of Ams., L.C.C., 22 N.Y.3d 658, 663 [2014]). A plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (Narducci, 96 N.Y.2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 N.Y.3d 731, 732 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 758 [2008]) and that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci, 96 N.Y.2d at 268; see Fabrizzi, 22 N.Y.3d at 663).
As is relevant here, Labor Law § 240 (1) provides: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure 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."
Under the facts here, plaintiffs work in unloading the trailer was covered work for purposes of section 240 (1) (see Serrano v TED Gen. Contr., 157 A.D.3d 474, 475 [1st Dept 2018]; Serowik v Leardon Boiler Works Inc., 129 A.D.3d 471, 471-472 [1st Dept 2015]; cf. Shaw v Scepter, Inc., 187 A.D.3d 1662, 1663-1664 [4th Dept 2020]).
Importantly, in assessing liability under Labor Law § 240 (1) here, the Court of Appeals has specifically held that a four-to-five-foot fall from the bed of a flatbed trailer is not the sort of elevation risk that implicates the protections of Labor Law § 240 (1) (see Toefer v Long Is. R.R., 4 N.Y.3d 399, 408-409 [2005]; Berg, 10 N.Y.3d at 903-904). Indeed, this rationale also applies and section 240 (1) is not implicated when a plaintiff's fall from a flatbed is precipitated by the upward or lateral movement of an object (see Toefer, 4 N.Y.3d at 408; Brownell v Blue Seal Feeds, Inc., 89 A.D.3d 1425, 1426 [4th Dept 2011]). Nevertheless, where a plaintiff falls from on top of a load or material that is significantly above the four-to-five-foot height of the truck or trailer bed (see Myiow v City of New York, 143 A.D.3d 433, 436 [1st Dept 2016]; Intelisano v Sam Greco Constr., Inc., 68 A.D.3d 1321, 1322-1323 [3d Dept 2009]; Ford v HRH Constr. Corp., 41 A.D.3d 639, 640-641 [2d Dept 2007]; cf. Berg, 10 N.Y.3d at 903-904) or where a plaintiff's fall from the truck or trailer bed is caused by a falling object that should have been secured or was improperly secured (see Medouze v Plaza Constr. LLC, 199 A.D.3d 465, 465-466 [1st Dept 2021]; Shaw v Scepter, Inc., 187 A.D.3d 1662, 1664-1665 [4th Dept 2020]; Flores v Metropolitan Transp. Auth., 164 A.D.3d 418, 419 [1st Dept 2018]; Treile v Brooklyn Tillary, LLC, 120 A.D.3d 1335, 1336-1337 [2d Dept 2014]; Hyatt v Young, 117 A.D.3d 1420, 1420-1421 [4th Dept 2014]; cf. Rodriguez v D & S Bldrs., LLC, 98 A.D.3d 957, 958-959 [2d Dept 2012]), the Appellate Division has recognized that section 240 (1) is or may be implicated.
Here, the fact that the skid was on the same level as plaintiff does not bar application of section 240 (1) (see Wilinski, 18 N.Y.3d at 9-10; Natoli v City of New York, 148 A.D.3d 489, 489 [1st Dept 2017]; McCallister v 200 Park, L.P., 92 A.D.3d 927, 928-929 [2d Dept 2012]). However, the top of the skid at issue was only at plaintiff's chest level, and, to the extent that the track fell onto plaintiff's chest, it did not fall a significant distance (see Narducci, 96 N.Y.2d at 227; Wright v Ellsworth Partners, LLC, 173 A.D.3d 1409, 1410 [3d Dept 2019], lv denied 34 N.Y.3d 907 [2019]; Kuhn v Giovanniello, 145 A.D.3d 1457, 1458 [4th Dept 2016]; Grygo v 1116 Kings Heighway Realty, LLC, 96 A.D.3d 1002, 1003 [2d Dept 2012]). On the other hand, the bundles of track undoubtedly continued to generate force as they slid off the skid while pushing against plaintiff and, although each bundle only weighed 25 or 26 pounds, it is apparent from the video showing the accident that at least a few bundles fell onto plaintiff. In view of the combined weight of the track bundles and the force they may have generated despite the limited distance at issue (see Wilinski, 18 N.Y.3d at 10; Outar, 5 N.Y.3d at 732; Tropea v Tishman Constr. Corp., 172 A.D.3d 450, 451 [1st Dept 2019], affirming 2017 WL 6731869, *2 [U] [Sup Ct, New York County 2017]; Rutkowski v New York Convention Ctr. Dev. Corp., 146 A.D.3d 686, 686 [1st Dept 2017]; Pritchard v Tully Constr. Co., Inc., 82 A.D.3d 730, 730-731 [2d Dept 2011]; Cardenas v One State St., LLC, 68 A.D.3d 436, 437-438 [1st Dept 2009]; Mendoza v Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 506 [2d Dept 2007]; cf. Kuhn, 145 A.D.3d at 1458; but see Rodriguez, 98 A.D.3d at 958), this court finds that there are factual issues with respect to whether plaintiff was faced with a significant elevation differential for purposes of section 240 (1) (see Wiski v Verizon N.Y., Inc., 186 A.D.3d 1590, 1591 [2d Dept 2020]; Smiley v Allgaier Constr. Corp., 162 A.D.3d 1481, 1483 [4th Dept 2018]; Rutkowski, 146 A.D.3d at 686; Wright v Ellsworth Partners, LLC, 143 A.D.3d 1116, 1117-1118 [3d Dept 2016]; Farrington v Bovis Lend Lease LMB, Inc., 51 A.D.3d 624, 625-626 [2d Dept 2008]). For similar reasons, there are also factual issues as to whether a section 240 (1) securing device was required under the circumstances (see Fabrizzi, 22 N.Y.3d at 663-664; Wilinski, 18 N.Y.3d at 10-11; O'Brian v 4300 Crescent L.L.C., 180 A.D.3d 437, 438 [1st Dept 2020]; Carlton v City of New York, 161 A.D.3d 930, 932 [2d Dept 2018]; Romero v 2200 N. Steel, LLC, 148 A.D.3d 1066, 1068 [2d Dept 2017]; Farrington, 51 A.D.3d at 625-626), and as to whether the dunnage may be considered a section 240 (1) safety device that failed to perform its proper function (cf. Medouze, 2021 NY Slip Op 06094, *1).
The court notes that the Second Departments decision in Rodriguez (98 A.D.3d 957) appears factually similar to plaintiff's accident. The Second Department's holding that defendants were entitled to summary judgment appears to have been based, at least in part, on its finding that the material that pushed the plaintiff off of the truck bed was at the same level as the plaintiff and on its finding that the material was not being hosted or secured at the time of the accident. However, as noted above, the Court of Appeals and the Second Department have held that the fact that material is at the same level as a plaintiff does not, in and of itself, preclude a finding that a plaintiff was subject to an elevation differential (see Wilinski, 18 N.Y.3d at 9-10; McCallister, 92 A.D.3d at 928-929) and that the fact that the material was not being hoisted or secured at the time of the accident does not preclude section 240 (1) coverage if the material required securing for the purpose of the undertaking (see Quattrocchi, 11 N.Y.3d at 758; Outar, 5 N.Y.3d at 732; Hensel v Aviator FSC, Inc., 198 A.D.3d 884, 887 [2d Dept 2021]). As such, this court questions the precedential value of Rodriguez, and finds that it does not compel a finding that Labor Law § 240 is inapplicable here as a matter of law.
Although the World Trade Center Defendants and plaintiff have submitted affidavits from experts in support of their respective motions, the court finds that the conclusory assertions of each of the experts fail to demonstrate the applicability or inapplicability of section 240 (1) as a matter of law.
Contrary to the contentions of the World Trade Center Defendants, plaintiff's failure to inspect the load prior to cutting the straps and his performing that task while standing on the edge of the trailer does not constitute the sole proximate cause of the accident. Namely, the World Trade Center Defendants have failed to identify evidentiary proof that safety devices that would have allowed plaintiff to perform his work in a safer manner were readily available, that plaintiff was instructed to use such devices, or that he was ever instructed to perform his work in a different manner (see Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1167-1168 [2020]; Cioffi v Target Corp., 188 A.D.3d 788, 791-792 [2d Dept 2020]; Zholanji v 52 Wooster Holdings, LLC, 188 A.D.3d 1300, 1302 [2d Dept 2020]). At most, the World Trade Center Defendants have established that plaintiff was comparatively at fault for the accident, which is not a defense to a Labor Law § 240 (1) cause of action (see Orellana v 7 West 34th St., LLC, 173 A.D.3d 886, 887-888 [2d Dept 2019]; see also Wu v 34 17th St. Project LLC, A.D.3d, 2021 NY Slip Op 06934, *1 [1st Dept 2021]; DaSilva v Toll First Ave., LLC, 199 A.D.3d 511, 512-513 [1st Dept 2021]).
In view of the factual issues relating to whether the accident involved a significant elevation differential for purposes of Labor Law § 240 (1) and whether a section 240 (1) safety device was required under the circumstances, both plaintiff's cross motion and the World Trade Center Defendants' motion must be denied with respect to liability under section 240 (1).
Labor Law § 241 (6)Regarding plaintiff's Labor Law § 241 (6) cause of action, under that section an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dept 2017]). Here, plaintiff, in his bill of particulars, premises his section 241 (6) cause of action on violations of Industrial Code sections 12 NYCRR 23-1.15 (a-e), 23-1.22 (c), 23-6.1 (d), 23-9.2 (a), 23-9.7 (c), and 23-9.8 (h). To the extent that 12 NYCRR 23-1.15 (a-e), 23-1.22 (c), 23-6.1 (d), 23-9.2 (a), 23-9.7 (c) state specific standards, they are inapplicable to the facts of this case or any violation thereof was not a proximate cause of plaintiff's accident. Plaintiff has abandoned reliance on these regulations, other than 12 NYCRR 23-9.8 [h], by failing to address them in his moving and opposition papers (see Debennedetto v Chetrit, 190 A.D.3d 933, 935 [2d Dept 2021]; Pita v Roosevelt Union Free Sch. Dist., 156 A.D.3d 833, 835 [2d Dept 2017]).
While plaintiff does address 12 NYCRR 23-9.8 (h) (part of an Industrial Code section addressing the use of lift and fork trucks), that section is inapplicable to the facts here because plaintiff and his coworkers were not using a forklift at the time of the accident (see e.g. Toefer, 4 N.Y.3d at 409-410 [Industrial Code sections setting standards for use of hoists or cranes inapplicable were no such device was used on the job at issue]; Georgakopoulos v Shifrin, 83 A.D.3d 659, 660 [2d Dept 2011]).
Contrary to the World Trade Center Defendants' contentions, plaintiff can rely on 12 NYCRR 1.7 (f) in opposing the World Trade Center Defendants' motion despite the fact that plaintiff identified that section for the first time in his opposition papers (see Shaw, 187 A.D.3d at 1665; Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 664 [2d Dept 2015]). However, the bed of a flatbed trailer during unloading is not a working level within the meaning of that section (see Molloy v Long Is. R.R., 150 A.D.3d 421, 422 [1st Dept 2017]; Brownell, 89 A.D.3d at 1427; Lavore v Kir Munsey Park 020, LLC, 40 A.D.3d 711, 713 [2d Dept 2007], lv denied 10 N.Y.3d 701 [2008]). To the extent that the bed may nevertheless be seen as a working level (see Intelisano, 68 A.D.3d at 1323 [3d Dept 2009]; Akins v Baker, 247 A.D.2d 562, 562 [2d Dept 1998]), plaintiff's accident was not proximately caused by the absence of a stairway, ramp or runway to access the bed of the trailer as the accident did not occur while plaintiff was ascending or descending to a different level (see Gielow v Rosa Coplon Home, 251 A.D.2d 970, 971-972 [4th Dept 1998], appeal dismissed & lv. denied 92 N.Y.2d 1042 [1999]; see also Smiley, 162 A.D.3d at 1483; Miranda v NYC Partnership Hous. Dev. Fund Co., Inc., 122 A.D.3d 445, 446 [1st Dept 2014]).
As discussed above, however, plaintiff cannot rely on section 23-1.7 (f) as a basis for his own cross motion for summary judgment because that section was not addressed by defendants in moving for summary judgment.
Accordingly, the World Trade Center Defendants have demonstrated their prima facie entitlement to dismissal of the Labor Law § 241 (6) cause of action, and plaintiff has failed to demonstrate an issue of fact warranting denial of this aspect of their motion. Plaintiff's cross motion must be denied for the reasons stated herein.
Labor Law § 200 and Common-Law Negligence
When a common-law negligence and Labor Law § 200 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 (see Rizzuto, 91 N.Y.2d at 352; Hart v Commack Hotel, LLC, 85 A.D.3d 1117, 1118 [2d Dept 2011]; Shaw, 75 A.D.3d at 635-636). Where a premises condition is at issue, property owners and general contractors may be held liable under common-law negligence and for a violation of Labor Law § 200 if they either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (see Abelleira v City of New York, 120 A.D.3d 1163, 1164 [2d Dept 2014]; Bauman v Town of Islip, 120 A.D.3d 603, 605 [2d Dept 2014]; Ortega v Puccia, 57 A.D.3d 54, 61 [2d Dept 2008]).
Initially, in this respect, the World Trade Center Defendants have demonstrated, prima facie, that the loading dock area did not constitute a dangerous property condition through the affidavit of its own engineer expert and that of the architect submitted by Tishman, the later of whom asserted, as is relevant here, that the sidewalk shed area and loading dock complied with the requirements of New York City's building code and of the Occupational Safety and Health Administration (OSHA), and that there was no requirement for the erection of guardrails or platforms to allow access from the side of a flatbed truck (see McGrath v George Weston Bakeries, Inc., 117 A.D.3d 1303, 1304 [3d Dept 2014]). Although the record includes deposition testimony from plaintiff and other witnesses to the effect that the limitations posed by design of the loading dock and ramp meant that plaintiff and his coworkers had to unload the flatbed manually while standing on the flatbed, this evidence, at best, demonstrates that the loading dock design furnished the occasion for the occurrence of the accident and fails to show that the design was its proximate cause (see Liquori v Brown, 172 A.D.3d 1354, 1356 [2d Dept 2019]; Rattray v City of New York, 123 A.D.3d 688, 689-690 [2d Dept 2014]; Hersman v Hadley, 235 A.D.2d 714, 717-718 [3d Dept 1997]; Souffrant v Quality Wholesale Veal Ctr., 135 A.D.2d 398, 400 [1st Dept 1987]). The conclusory assertions of Anthony Corrado, a project superintendent, in an affidavit submitted by plaintiff, fail to demonstrate an issue of fact as he identifies no authority, code treatise, standard, building code or other basis in support of his assertions that the design of the loading dock was improper (see Buchholz v Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8-9 [2005]; Warshak v City of New York, A.D.3d, 2021 NY Slip Op 06974, *1 [1st Dept 2021]; Pamilla v Bangiyev, 197 A.D.3d 1187, 1188 [2d Dept 2021]; Jones v City of New York, 32 A.D.3d 706, 707 [1st Dept 2006]). As such, plaintiff has failed to demonstrate an issue of fact as to whether the loading dock constituted a dangerous property condition.
Although the World Trade Center Defendants did not submit the affidavit from Tishman's architect, this court undoubtedly has the power to consider it with respect to the World Trade Center Defendants' motion given that plaintiff had an opportunity to address that affidavit in opposing Tishman's motion which was submitted and argued with that of the World Trade Center Defendants and given this court's power to search the record under CPLR 3212 (b) (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106, 111-112 [1984]; Edgerton v City of New York, 160 A.D.3d 809, 811 [2d Dept 2018]; Ikeda v Hussain, 81 A.D.3d 496, 497 [1st Dept 2011]).
There are factual issues with respect to whether the World Trade Center Defendants supervised and controlled plaintiff's work, however, that require denial of both the motion by the World Trade Center Defendants and plaintiff's cross motion. Although the testimony in the record shows that the World Trade Center Defendants generally did not direct or control Jacobson's means and methods of performing its work, Turner's own witness testified that it was Turner who informed Jacobson that it could not use forklifts to unload trucks at the loading dock and that this direction came from Silverstein. This restriction, and the concomitant awareness that subcontractor employees would have to manually unload the truck deliveries presents an issue of fact as to whether the World Trade Center Defendants supervised and controlled the work at issue (see Valle v Port Auth. of N.Y. & N.J., 189 A.D.3d 594, 596 [1st Dept 2020]; Pouso v City of New York, 22 A.D.3d 395, 396 [1st Dept 2005]; Carballo v 444 E. 87th St. Owners Corp., 14 A.D.3d 526, 527 [2d Dept 2005], lv denied 5 N.Y.3d 710 [2005]; Gonzalez v Stern's Dept. Stores, 211 A.D.2d 414, 415 [1st Dept 1995]; see also Rizzuto, 91 N.Y.2d at 353). While a reasonable inference may be drawn from the testimony in the record that the bar on using forklifts was imposed because the loading dock was located on a narrow street, was across from a firehouse, and that there was significant pedestrian traffic in the area --all factors outside the control of the World Trade Center Defendants -- the World Trade Center Defendants have failed to present evidentiary proof that other areas at the worksite without such restrictions were unavailable for unloading. Factual issues also exist as to whether manual unloading presented a foreseeable danger under the circumstances here (compare Pouso, 22 A.D.3d at 396, with Rosen v McGuire, 189 A.D.2d 966, 968 [3d Dept 1993]).
Of note, in this respect, plaintiff did testify that he had manually unloaded material in this manner on other jobs. However, Turner's own witness testified that he believed that it would have been safer if forklifts could have been used to unload the trucks.
Common-Law Negligence - Other Defendants
With respect to the common-law negligence claims against it, Tishman has provided evidentiary proof that it was Regional, Tishman's subcontractor, that designed and constructed the loading dock area at issue. Such evidence is sufficient to demonstrate, prima facie, that Tishman did not owe plaintiff a duty of care, since any contractual duty it may have owed to 4WTC is insufficient to create a duty of care owing to plaintiff (see Guzman v Jamaica Hosp. Med. Ctr., 190 A.D.3d 705, 706 [2d Dept 2021]; Kenny v Turner Constr. Co., 155 A.D.3d 479, 480 [1st Dept 2017]). Even if it could be found to owe plaintiff a duty, Tishman, as noted above with respect to the World Trade Center Defendants, has demonstrated that the loading dock was not a dangerous property condition (see McGrath, 117 A.D.3d at 1304), and that, in any event, any defect with the loading dock only provided the occasion for the accident (see Liquori, 172 A.D.3d at 1356; Rattray, 123 A.D.3d at 689-690; Souffrant, 135 A.D.2d at 400). Since plaintiff has failed to demonstrate an issue of fact in this respect, and since Tishman is also entitled to summary judgment dismissing the Labor Law causes of action as against it, Tishman is entitled to summary judgment dismissing the complaint as against it.
While Navarro and Clarkwestern have demonstrated that they are entitled to dismissal of the Labor Law causes of action as against them, they have each failed to demonstrate their prima facie entitlement to dismissal of plaintiff's common-law negligence claims as against them. In this respect, both Clarkwestern and Navarro appended the deposition testimony of plaintiff, DePrima and Ouellette to their respective motions, and the testimony of plaintiff and DePrima suggest that an issue with respect to the dunnage, which was placed by Clarkwestern, may have contributed to the accident, while that of Ouellette suggests that Navarro's tightening of the load may have contributed to the accident (see Ciaravino v Bulldog Natl. Logistics, LLC, 146 A.D.3d 927, 928 [2d Dept 2017]; Zwolak v Phoenix Steel Serv., 2015 WL 5971128, *6 [WDNY 2015]). Moreover, Navarro's witness, while he could testify to the general procedures Navarro's drivers would follow, had no personal knowledge relating to the securing and transportation of this particular load (see McGrath, 117 A.D.3d at 1304-1305). Similarly, Clarkwestern's deposition witness could only testify regarding Clarkwestern's general practices for loading skids and placing them on Navarro's flatbeds and he had no personal knowledge relating to the packing and loading of the skid at issue (id.; Brownell, 89 A.D.3d at 1428; cf. Ciaravino v Bulldog Natl. Logistics, LLC, 146 A.D.3d 925, 926 [2d Dept 2017]). Although Clarkwestern also submits an affidavit from a safety consultant for trucking carriers, this expert's assertions are largely conclusory, and fail to demonstrate that Clarkwestern was not negligent as a matter of law (see Lynch v C&S Wholesale Grocers, Inc., 157 A.D.3d 471, 472 [1st Dept 2018]; Farrington, 51 A.D.3d at 626). In sum, both Navarro and Clarkwestern have failed to demonstrate, prima facie, that they were not negligent, and their respective motions must thus be denied regardless of the sufficiency of plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
From their testimony, it is evident that Plaintiff, DePrima, and Ouellette each had significant work experience unloading studs, track and similar material, and, in view of this work experience, their testimony regarding what they believed caused the accident based on their observations might be admissible at trial (see Evers v Carroll, 17 A.D.3d 629, 630 [2d Dept 2005]; see also Holownia v Caruso, 183 A.D.3d 1035, 1037-1038 [3d Dept 2020], lv denied 36 N.Y.3d 902 [2020]; Efstathio v Cuzco, LLC, 51 A.D.3d 712, 714 [2d Dept 2008]; cf. Schechter v 3320 Holding LLC, 64 A.D.3d 446, 449-450 [1st Dept 2009]).
Indemnification and Contribution
The reasons that warrant dismissing the common-law negligence causes of action against Tishman and Tishman/Turner likewise warrant the dismissal of the claims for contribution and common-law indemnification as against Tishman/Turner (see Debennedetto, 190 A.D.3d at 939; Cutler v Thomas, 171 A.D.3d 860, 861-862 [2d Dept 2019]; Kane v Peter M. Moore Constr. Co., Inc., 145 A.D.3d 864, 869 [2d Dept 2016]; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011]).
On the other hand, factual issues with respect to the whether the World Trade Center Defendants, Navarro, and Clarkwestern were themselves negligent requires denial of the portions of their respective motions seeking dismissal of the contribution and common-law indemnification claims as against them (see Robles v 635 Owner, LLC, 192 A.D.3d 604, 605 [1st Dept 2021]; State of New York v Defoe Corp., 149 A.D.3d 889, 890 [2d Dept 2017]; Chilinski v LMJ Contr., Inc., 137 A.D.3d 1185, 1187-1188 [2d Dept 2016]; see also Abreu v Rodriguez, 195 A.D.3d 1277, 1279 [3d Dept 2021]; Lam v Sky Realty, Inc., 142 A.D.3d 1137, 1138-1139 [2d Dept 2016]). Similarly, the factual issues with respect to the World Trade Center Defendant's own negligence and as to whether either Navarro or Clarkwestern were negligent requires denial of the portion of the World Trade Center Defendants' seeking summary judgment on its common-law indemnification claims as against them (see McDonnell v Sandaro Realty, Inc., 165 A.D.3d 1090, 1097-1098 [2d Dept 2018]; Shaughnessy v Huntington Hosp. Assn., 147 A.D.3d 994, 999 [2d Dept 2017]; Wahab v Agris & Brenner, LLC, 102 A.D.3d 672, 674-675 [2d Dept 2013]).
Contractual Indemnification and Insurance Issues
Clarkwestern seeks to amend its answer to add cross claims for contractual indemnification and breach of contract to obtain insurance and seeks summary judgment in its favor on those claims. The court initially finds that Navarro, in opposing the motion with respect to the proposed breach of agreement to obtain insurance claim, has demonstrated that the breach of contract claim is untimely under the six-year statute of limitations for contract actions (CPLR 213 [2]). Although Navarro and Clarkwestern would both appear to be residents of Connecticut, and their contract contains an Ohio choice of law provision, CPLR 202 precludes a claim that is untimely under New York law even if it would be timely where the claim accrued (see Overall v Estate of Klotz, 52 F.3d 398, 402-403 [2d Cir 1995]; see also 2138747 Ontario, Inc. v Samsunt C&T Corp., 31 N.Y.3d 372, 376-377 [2018]; Global Fin. Corp. v Triarc Corp., 93 N.Y.2d 525, 528 [1999]). Contrary to Clarkwestern's contentions, its breach of contract claim accrued when Navarro purportedly failed to obtain the requisite insurance covering it as an additional insured (see Port Auth. of N.Y. & N.J. v Brickman Group Ltd., LLC, 181 A.D.3d 1, 11 [1st Dept 2019]; Wright v Emigrant Sav. Bank, 112 A.D.3d 401, 402 [1st Dept 2013]; St. George Hotel Assoc. v Shurkin, 12 A.D.3d 359, 360 [2d Dept 2004]). As Navarro obtained the policy at issue in July 2013, Clarkwestern's breach of contract claim accrued no later than July 2013 (see Wright, 112 A.D.3d at 402; St. George Hotel Assoc., 12 A.D.3d at 360), and, since Clarkwestern did not seek leave to add the contract claim until September 2020, its contract claim is untimely under the applicable statute of limitations. Because the breach of contract claim is untimely, the portion of Clarkwestern's motion to seeking leave to amend the answer to add it is patently devoid of merit and must thus be denied (see Wright, 112 A.D.3d at 402; see also Deutsche Bank Natl. Trust Co. v McAvoy, 188 A.D.3d 808, 810 [2d Dept 2020]; Schwartz v Walter, 171 A.D.3d 969, 970 [2d Dept 2019]).
The court notes that both Clarkwestern and Navarro rely on New York law in addressing the statute of limitations issue, and neither argues that any other law is applicable.
Clarkwestern's reliance on the decision inBrooklyn Union Gas Co. v Interboro Surface Co. (87 A.D.2d 833 [2d Dept 1982], appeal dismissed 57 N.Y.2d 673 [1982]) in support of its argument for finding a later accrual date is misplaced as the Appellate Division, Second Department, in St. George Hotel Assoc. (12 A.D.3d at 360), stated that its earlier decision in Brooklyn Union Gas Co. should not be followed to the extent it may be read to suggest a later accrual date for breach of contract actions for failure to obtain insurance.
With respect to Clarkwestern's contractual indemnification claim, the September 12, 2011 Transportation Agreement between Navarro and Clarkwestern (Transportation Agreement) provides that:
"Carrier [Navarro] further agrees that it shall indemnify and hold the Shipper [Clarkwestern] harmless from and against all loss, damage, expense, actions and claims for injury to persons including injury resulting in death and damage to property (collectively "Claims") arising out of or in connection with Carrier's handling of commodities, excluding, however, any such claims arising out of the deliberate acts or omissions, or the acts or omissions caused by the gross negligence of the Shipper, its agents, servants, employees or consignees" (Transportation Agreement ¶ 10).
In considering Clarkwestern's motion, this court initially finds that Clarkwestern's delay in seeking to add the contractual indemnification claim against Navarro is not a ground for denying this aspect of its motion, as Navarro -- which addressed the contractual indemnification provision in its own motion papers and was undoubtedly on notice that Clarkwestern would likely seek contractual indemnification from it -- has failed to demonstrate that it would suffer prejudice as the result of the amendment (see Lui v Town of E. Hampton, 117 A.D.3d 689, 690 [2d Dept 2014]; Simon v Granite Bldg. 2, LLC, 114 A.D.3d 749, 756 [2d Dept 2014]; Shiavone v Victory Memorial Hosp., 300 A.D.2d 294, 295-296 [2d Dept 2002]).
On the merits, Navarro initially argues that section 11 of the Transportation Agreement acts as a limitation on the indemnification rights provided under section 10. Contrary to Navarro's contentions, however, any limitation imposed by section 11 of the agreement has no impact on Clarkwestern's right to indemnification here since section 11 only applies where the loss or damage at issue relates to the commodity being shipped.Further, by only barring indemnification where the claim arises "out of the deliberate acts or omissions" or "gross negligence" of Clarkwestern, the Transportation Agreement clearly expresses an intent that Clarkwestern be indemnified for its own negligence (see Total Quality Logistics, L.L.C. v JK & R Express, L.L.C., 164 Ohio St.3d 495, 499-500, 173 NE3d 1168, 1173 [2020]; Niagara Frontier Transp. Auth. v Tri-Delta Constr. Corp., 107 A.D.2d 450, 451-452 [4th Dept 1985], affd for the reasons stated below 65 N.Y.2d 1038 [1985]). Since the Transportation Agreement is an agreement for the transportation of goods and is not a construction contract, the limitations imposed by Ohio Revised Code § 2305.31 - which, like New York's General Obligations Law § 5-322.1, bars indemnification for a party's own negligence with respect to construction contracts - are inapplicable (see Lamb v Armco, Inc., 34 Ohio App3d 288, 289-291, 518 N.E.2d 53, 54-55 [Ct App 1986]; Goll v American Broadcasting Cos., Inc., 10 A.D.3d 672, 674 [2d Dept 2004], affirming, as modified 2003 WL 25519845 [Sup Ct, Queens County 2003]).
As is relevant in this respect, section 11 of the Transportation Agreement provides that "[r]isk of loss or damage to any commodities rests with Carrier [Navarro] except (i) while the commodities are on the Shipper's premises or (ii) if such loss or damages results from improper loading of the commodities by Shipper."
Still at issue, however, is the scope of the indemnification provided under the provision. Although the "arising out of or in connection with" language in this provision does not require a showing of negligence on Navarro's part and suggests that the right to indemnification under the provision is quite broad, the full scope of this indemnification provision turns on what is encompassed within the term "handling." Handling is not defined in the Transportation Agreement. As such, this court must turn to the general rules of contract interpretation to determine its meaning.
These rules require that "particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought" (Atwater & Co. v Panama R. R. Co., 246 NY 519, 524 [1927]; see Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 N.Y.3d 398, 404 [2009]; Kass v Kass, 91 N.Y.2d 554, 566 [1998]; see also Ellington v EMI Music, Inc., 24 N.Y.3d 239, 244 [2014]). "Where the document makes clear the parties' over-all intention, courts examining isolated provisions 'should then choose that construction which will carry out the plain purpose and object of the [agreement]'" (Kass, 91 N.Y.2d at 567, quoting Williams Press v State of New York, 37 N.Y.2d 434, 440 [1975] [internal quotations omitted]). The words and phrases used by the parties must generally be given their plain meaning, although, where an industry employs distinct terminology, known industry practices may be considered to help define a term (see Beardlsee v Inflection Energy, LLC, 25 N.Y.3d 150, 157 [2015]; Last Time Beverage Corp. v F&V Distrib. Co., LLC, 98 A.D.3d 947, 951-952 [2d Dept 2012]; see also; Dryden Mut. Ins. Co. v Goessl, 117 A.D.3d 1512, 1514-1515 [4th Dept 2014], affd 27 N.Y.3d 1050 [2016]; J.P. Morgan Inv. Mgt. Inc. v AmCash Group, LLC, 106 A.D.3d 559, 559-560 [1st Dept 2013]; Hoag v Cancellor, Inc., 246 A.D.2d 224, 230-231 [1st Dept 1998]).
Although the parties make no specific reference to rules for interpreting contracts in Ohio, Ohio follows these same general principles (see Foster Wheeler Enviresponse, Inc. v Franklyn County Convention Facilities Auth., 78 Ohio St.3d 353, 361-362, 678 N.E.2d 519, 526 [1997]).
Here, ordinary dictionary definitions of the word "handling" suggest that handling is complete when an item is turned over or delivered. Further, the Transportation Agreement provides, as is relevant, that "the shipper [Clarkwestern] agrees to tender commodities to Carrier for transportation by Carrier [Navarro] or it's agent and Carrier agrees to accept and deliver the commodities promptly and efficiently at Shippers direction at Carrier's sole cost and expense, the Shipper shall designate the point or points where stop-off, if any, shall be made by partial unloading" (Transportation Agreement ¶ 2). As is clear from this language, Navarro's transportation obligations under the Transportation Agreement end upon delivery. It would thus be incongruous to hold that handling for purposes of the Transportation Agreement places a broader obligation on Navarro. Thus, Navarro's handling of a load, for indemnification purposes, ends upon delivery.
Handling is defined as "the process by which something is packaged, transported, delivered, etc." or "of or pertaining to the process of transporting, delivering, etc." (Random House Webster's College Dictionary 606 [1995]), "a process by which something is handled esp. in a commercial transaction <the problem was not the sales but the ~ of the merchandise>: esp.: the packaging and shipping of an object or a material (as to a consumer) <made a small ~ charge for all deliveries of goods outside the city limits>" (Webster's Third New International Dictionary, Unabridged 1027 [Merriam-Webster 1993]), or similarly, "the act or cost of transporting goods from one place to another" (Oxford Advanced American Dictionary [https://www.oxfordlearnersdictionaries.com/ us/definition /american_english/handling] [online free version]). Of note, both Ohio and New York will look to dictionary definitions to determine the ordinary meaning of words (see State of Ohio v Ohio Civil Serv. Emps. Assn., Local 11 AFSCMe AFL-CIO, 71 NE3d 622, 627 [Ct App 2016]; see also Ragins v Hospitals Ins. Co., Inc., 22 N.Y.3d 1019, 1022 [2013]; Violet Realty, Inc. v Amigone, Sanchez & Mattrey, LLP, 183 A.D.3d 1278, 1289 [4th Dept 2020]).
Central to the dictionary definition of delivery is the turning over of items or goods to the intended recipient. In shipping context, unless the parties' contract for delivery to encompass other acts, delivery is complete when the load is made accessible for unloading by the recipient (who is generally referred to as the consignee) and the unloading of items from a truck is normally not part of a delivery (see Secretary of Agriculture of United States v United States, 347 U.S. 645, 647 [1954]; Intech, Inc. v Consolidated Freightways, Inc., 836 F.2d 672, 674-675 [1st Cir 1987]; Oshkosh Storage Co. v Kraze Trucking LLC, 65 F Supp3d 634, 639 [ED Wisc 2014]; Medeiros v Whitcraft, 931 F.Supp. 68, 74 [D Mass. 1996]; Total Quartet Logistics, LLC v Balance Transp., LLC, 122 NE3d 691, 696 [Ohio Ct Common Pleas 2019]).
Delivery is defined as "the carrying and turning over of letters, goods, etc., to a designated recipient" or "to give into another's possession or keeping; hand over; surrender" (Random House Webster's College Dictionary 606 [1995]). Similarly, another dictionary, in relevant part, defines delivery as "the act of delivering up or over: transfer of the body or substance of a thing . . . the physical and legal transfer of a shipment from consignor to carrier, between carriers, and from transport agency to consignee" (Webster's Third New International Dictionary, Unabridged 597 [Merriam-Webster 1993]).
In applying this construction of the Transportation Agreement to the facts here, this court finds that, in the absence of any evidence that bill of lading at issue imposed any further obligations on Navarro to effectuate delivery, and since the accident occurred during the unloading process by the recipient of the delivery, the record facts show that the load had already been delivered at the time of the accident. As such, the fact that the accident happened on Navarro's trailer does not show, in and of itself, that the accident resulted from Navarro's "handling" of the load. Nevertheless, given the broad language allowing indemnification where the accident arises from or is connected with Navarro's handling of the load, Clarkwestern may still be entitled to indemnification if it can demonstrate that any of Navarro's acts during the acceptance, transportation or delivery of the load were causally related to the accident (see Karwoski v 1407 Broadway Real Estate, LLC, 160 A.D.3d 82, 87-88 [1st Dept 2018]; Muevecela v 117 Kent Ave., LLC, 129 A.D.3d 797, 798 [2d Dept 2015]; see also Maroney v New York Cent. Mut. Fire Ins. Co., 5 N.Y.3d 467, 472 [2005]; cf Vasquez v City of New York, A.D.3d, 2021 NY Slip Op 06824, *2 [1st Dept 2021]; Murray v City of New York, 43 A.D.3d 429, 431 [2d Dept 2007]; Beltran v Navillus Tile, Inc., 108 A.D.3d 414, 416 [1st Dept 2013]). Further, contrary to Narvarro's contention, Clarkwestern's arguments that plaintiffs acts were the sole proximate cause of the accident do not, under the circumstances here, preclude Clarkwestern from seeking indemnification under the contract since, as noted above, factual issues remain as to whether Narvarro's acts may have contributed to the accident, and Clarkwestern has a right to plead in the alternative (see George Cohen Agency, Inc. v Donald S. Perlman Agency, 51 N.Y.2d 358, 366 [1980]; Gray Line N.Y. Tours, Inc. v Big Apple Moving & Stor., Inc., 140 A.D.3d 478, 478 [1st Dept 2016]; CPLR 3014; see also People v Brown, 98 N.Y.2d 226, 232 n2 [2002]; cf. Worth Constr. Co., Inc. v Admiral Ins. Co., 10 N.Y.3d 411, 413-416 [2008]). Accordingly, Clarkwestern's contractual indemnification claim as against Navarro is not palpably insufficient or patently devoid of merit and it is thus entitled to the grant of leave to amend its answer to add that claim (see Lui, 117 A.D.3d at 690; Simon, 114 A.D.3d at 756; Shiavone, 300 A.D.2d at 295-296).
Finally, the portion of Clarkwestern's motion seeking summary judgment on the indemnification claim is denied, however, as Clarkwestern has failed to demonstrate, as a matter of law, that the accident was causally related to Navarro's handling of the load (see Winegrad, 64 N.Y.2d at 853).
This constitutes the decision and order of the court.