Opinion
28367/02.
Decided July 7, 2006.
Plaintiff Earl Jones cross-moves for an order, pursuant to CPLR 3212, granting partial summary judgment in his favor on the issue of liability under his Labor Law § 240(1) cause of action. Defendant/third-party plaintiff Powell Plaza Housing Development Fund Company, Inc., (Powell) moves for an order, pursuant to CPLR 3212, granting summary judgment against defendant/third-party defendant/fourth-party plaintiff Cheever Development Corporation (Cheever) for contractual indemnity and breach of contract for failure to obtain liability insurance. Cheever moves for an order, pursuant to CPLR 3212, granting summary judgment on its common-law indemnity claim against defendant/fourth-party defendant A.Z. Neptune Corporation (AZ Neptune).
Factual Background
The instant action arises out of an accident which occurred on October 2, 2001, when the plaintiff Earl Jones (plaintiff) allegedly sustained injuries while working at a building located at 2326 Seventh Avenue in New York City. At the time of the incident, the building was owned by Powell. On or about October 11, 2000, Powell entered into an agreement with Cheever for the latter to serve as the general contractor for a project involving the rehabilitation of several existing buildings located at 2322-2328 Seventh Avenue in New York City (the project). The project involved converting the buildings into 36 residential units and 4 commercial units. Cheever retained AZ Neptune to perform demolition work on the project, which consisted of, among other things, removing the arches which supported the first floor. Cheever also retained Staten Island Contracting (not a party herein) to, among other things, monitor the progress of the ongoing construction/rehabilitation work at the building and oversee the loading and unloading of construction materials needed for the project. At the time of the accident, plaintiff was employed by Staten Island Contracting as a laborer supervisor.
During his deposition, plaintiff testified that he was responsible for making sure that materials (i.e., wooden beams, sand, fencing and other construction materials) were delivered to the site, and that the work was being performed as planned. Plaintiff further testified that his immediate supervisor was Renis Rabii, a project manager for Staten Island Contracting. Just before the accident occurred, the plaintiff had entered the building and was walking across the first floor headed toward the backyard to check on the status of something. Immediately upon walking through the first floor level, the concrete floor collapsed, causing the plaintiff to fall to the basement thereby sustaining various injuries. Plaintiff claims that he was wearing a hard hat at the time of the accident, but that he was not provided with any other safety devices which could have prevented him from falling.
During his deposition, Mr. Rabii testified that, on the day of the accident, he had instructed the plaintiff to make sure that the first floor arches (the concrete material that was placed between two metal I-beam studs which supported the first floor) were demolished, and that the plaintiff was to call him in the event a problem arose. He further testified that AZ Neptune was the contractor responsible for performing this aspect of the demolition work. According to Mr. Rabii, earlier in the morning on the day of the accident, AZ Neptune had, in fact, performed demolition work on the first floor of the building which involved removing the arches.
On or about July 19, 2002, the plaintiff commenced an action for personal injuries against Powell alleging, inter alia, causes of action in common-law negligence and violations of §§ 200, 240(1) and 241(6) of the Labor Law. Powell interposed an answer and subsequently commenced a third-party action against Cheever seeking, inter alia, common-law and contractual indemnity. On or about April 17, 2003, plaintiff amended his complaint to add Cheever as a party defendant. Powell and Cheever both interposed answers to plaintiff's amended complaint. On or about November 5, 2003, Cheever commenced a fourth-party action against AZ Neptune asserting claims for contribution and indemnity. On or about May 27, 2004, plaintiff served a second amended verified complaint, which added AZ Neptune as a party defendant. In his bill of particulars, plaintiff alleges common-law negligence and violations of, inter alia, Labor Law §§ 200, 240(1) and 241(6).
Plaintiff's Cross Motion for Summary Judgment
Plaintiff seeks partial summary judgment on the issue of liability under his Labor Law § 240(1) cause of action against Powell, Cheever and AZ Neptune. A motion for summary judgment will be granted only where a movant has made "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact" ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Alvarez v. Prospect Hosp., 68 NY2d 320; Zuckerman v. City of New York, 49 NY2d 557; Wengenroth v. Formula Equipment Leasing, Inc., 11 AD3d 677). Once the movant has made such a showing, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or must demonstrate an acceptable excuse for failure to do so ( Winegrad, 64 NY2d at 853; Zuckerman, 49 NY2d at 562; Davenport v. County of Nassau, 279 AD2d 497; Bras v. Atlas Construction Corp., 166 AD2d 401). Summary judgment should be denied if the court has any doubt regarding the existence of triable issues of fact ( see Freese v. Schwartz, 203 AD2d 513; Miceli v. Purex Corp., 84 AD2d 562).
Labor Law § 240(1) affords protection to construction site workers who are exposed to elevation-related hazards ( see generally, Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287-290). Specifically, § 240(1) provides, in pertinent part, that:
"All contractors and owners and their agents 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."
In order to impose liability under the statute, a plaintiff must demonstrate that the statute was violated and that the violation was a contributing cause of his or her injuries ( see Blake, 1 NY3d at 287). Moreover, "the duty imposed by Labor Law § 240(1) is nondelegable and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" ( Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500; see also Haimes v. New York Tel. Co., 46 NY2d 132, 136-137). Finally, the statute is to be construed as liberally as possible in order to accomplish its protective goals ( see Martinez v. City of New York, 93 NY2d 322, 326). However, given the absolute liability imposed under Labor Law § 240(1), only those workers engaged in the activities specifically enumerated in the statutory language are protected under the statute ( id. at 326; Joblon v. Solow, 91 NY2d 457, 464; Luthi v. Long Island Resource Corp., 251 AD2d 554, 555).
In support of his motion, plaintiff contends that the undisputed facts show that, while the subject building was undergoing construction and demolition work, the first floor collapsed underneath him causing him to fall approximately 10 feet into the basement. Plaintiff further contends that the defendants failed to take the necessary precautions to prevent him from falling through the first floor which was undergoing demolition, and that this failure was the proximate cause of his injuries.
In opposition, Cheever, Powell and AZ Neptune (collectively defendants) argue that the happening of the accident does not fall within the ambit of Labor Law § 240(1). In this regard, defendants contend that, at the time of the accident, the plaintiff was not involved in any of the demolition or construction work but was merely in the process of walking across the floor in order to check on something in the back of the building. Defendants further contend that Labor Law § 240(1) is not applicable since the floor through which the plaintiff fell was a permanent rather than a temporary structure.
Having considered the parties' arguments and the relevant case law, the court holds that Labor Law § 240 (1) is applicable herein ( see Campisi v. Epos Contr. Corp., 299 AD2d 4, 5 [Labor Law § 240(1) applicable where the superintendent of construction who entered a building merely to ascertain how far the work had progressed fell between floor joists]). In Campisi, the First Department held that Labor Law § 240(1) may be applicable "despite the fact that the particular job being performed at the moment plaintiff was injured did not in and of itself constitute construction." The court held that the relevant inquiry was not whether the plaintiff picked up a tool to effect a repair, but whether he had been hired to take any part in the repair work. The court concluded that the inspector of a construction project, who was injured while performing his supervisory duties, performed work that was "part of" the construction project and, therefore, was protected ( id. at 7). His duties included monitoring the general contractors' work to make sure they were doing the job according to the blueprint specifications. The court ultimately held that plaintiff "was as much employed in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure' within the meaning of the statute as any of the employees whose work he inspected."
In the present case, plaintiff's employer, Staten Island Contracting, was hired by Cheever as a laborer supervisor to, among other things, monitor the progress of the construction/rehabilitation work ongoing at the building and oversee the loading and unloading of construction materials needed for the project. In this court's view, similar to the inspector in Campisi, the plaintiff was employed in the rehabilitation/demolition of the building at the time of his accident, and the work he was performing was "part of" that project ( see Campisi, 299 AD2d at 5-6). Because plaintiff's presence at the construction site exposed him to elevation-related risks, Labor Law § 240 (1) applies to his work ( see Longo v. Metro-North Commuter R.R., 275 AD2d 238, 239; Binetti v. MK West Street Co., 239 AD2d 214 [Labor Law § 240(1) applied to a worker whose responsibilities included providing a system of temporary lighting to assist other construction workers]; Covey v. Iroquois Gas Transmission Sys., LP, 218 AD2d 197, 199, affd 89 NY2d 952 [Labor Law § 240(1) applied to a construction worker who was lubricating heavy equipment that was being used to construct a pipeline]). Thus, contrary to the defendants' contention, defendants may be liable for the plaintiff's injuries, "despite the fact that the particular job being performed at the moment plaintiff was injured did not in and of itself constitute construction'" ( Campisi, 299 AD2d at 6, quoting Covey v. Iroquois Gas Transmission Sys., 218 AD2d 197, 199, affd. 89 NY2d 952; see O'Connor v. Lincoln Metrocenter Partners, 266 AD2d 60; Birbilis v. Rapp, 205 AD2d 569).
Additionally, the court rejects defendants' argument that Labor Law § 240(1) is not implicated because the plaintiff was injured as the result of the collapse of a permanent, rather than a temporary structure ( see Shipkoski v. Watch Case Factory Associates, 292 AD2d 587, 589; John v. Baharestani, 281 AD2d 114; Aiello v. Rockmor Elec. Enterprises, Inc., 255 AD2d 470; Carpio v. Tishman Constr. Corp. of NY, 240 AD2d 234, 235-236; Richardson v. Matarese, 206 AD2d 353; Collins v. County of Monroe Indus. Dev. Agency, 167 AD2d 914). Labor Law § 240(1) applies to the "falling worker" who is working at a gravity-related risk, and such risks have been held to occur at or near ground level ( see In Brandl v. Ram Builders, Inc., 7 AD3d 655 [Labor Law § 240(1) applicable where injured plaintiff stepped backwards into an unprotected opening in the floor of a home he was renovating, and fell from the ground floor to the basement]). Moreover, a collapsed floor has been held to constitute prima facie evidence of a violation of Labor Law § 240(1) ( see Robertti v. Chang, 227 AD2d 542; Richardson, 206 AD2d at 354 [a § 240 violation was shown prima facie by the collapse of a floor, without regard to whether it was part of the permanent structure]; Clute v. Ellis Hosp., 184 AD2d 942).
Here, the record conclusively establishes that AZ Neptune was responsible for demolishing the arches which supported the first floor of the building, and that it had performed such work earlier in the day that the plaintiff's accident occurred. The fact that the first floor underneath the plaintiff collapsed established a prima facie case of liability under Labor Law § 240 (1), since a collapse would not have occurred if safety devices had been properly constructed so as to give adequate protection ( see Robertti, 227 AD2d at 543; Richardson, 206 AD2d at 354). Since the defendants have failed to raise any triable issue of fact regarding same, the plaintiff is entitled to partial summary judgment on the issue of liability under his Labor Law § 240 (1) claim ( see Danielewski v. Kenyon Realty Co., LLC, 2 AD3d 666, 667).
Cheever's Common-law Indemnity Claim Against AZ Neptune
Cheever seeks summary judgment on its fourth-party claim against AZ Neptune for common-law indemnity. 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" ( Correia v. Professional Data Mgt., 259 AD2d 60, 65; see also Priestly v. Montefiore Med. Ctr., Einstein Med. Ctr., 10 AD3d 493, 495) or "in the absence of any negligence" that the proposed indemnitor "had the authority to direct, supervise, and control the work giving rise to the injury" ( Hernandez v. Two E. End Ave. Apt. Corp., 303 AD2d 556, 557; Reilly v. DiGiacomo Son, 261 AD2d 318).
Here, there is no evidence that Cheever's liability under Labor Law § 240(1) is other than vicarious. Moreover, it is undisputed that AZ Neptune was the entity responsible for performing the demolition work on the first floor of the building where plaintiff's accident took place. Thus, the uncontroverted evidence of AZ Neptune's exclusive supervision and control of the work giving rise to plaintiff's injury entitles Cheever to summary judgment with respect to its fourth-party claim for common-law indemnification against AZ Neptune ( see Hernandez, 303 AD2d at 558).
Powell's Summary Judgment Motion
Powell seeks summary judgment against Cheever for common-law and/or contractual indemnity and breach of contract for failure to obtain liability insurance.
Indemnification
Powell argues that it is entitled to summary judgment on its contractual indemnification claim against Cheever because Cheever was responsible for safety at the work site, and was ultimately responsible for hiring AZ Neptune to perform the demolition work which allegedly caused the plaintiff's injuries. Further, Powell maintains that the undisputed facts show that it did not actively direct, supervise, or control the plaintiff's work at the site.
"A party is entitled to full contractual indemnification [for damages incurred in a personal injury suit] provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances' (internal citations omitted)" ( Drzewinski v. Atlantic Scaffold Ladder Co., 70 NY2d 774). As long as an owner or general contractor is not negligent, General Obligations Law § 5-322.1 does not bar a party from receiving contractual indemnification ( see Brown v. Two Exch. Plaza Partners, 76 NY2d 172, 178-181; cf., Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 NY2d 786, 794-796). This is true even if the contract language purports to provide indemnification for an owner or general contractor's own negligence ( see Delaney v. Spiegel Assocs., 225 AD2d 1102, 1104).
Here, the agreement entered into between Cheever, as contractor, and Powell, as owner, contained the following indemnification provision:
"To the fullest extent permitted by law, [Cheever] shall indemnify and hold harmless [Powell] 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, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, but only to the extent caused in whole or in part by negligent acts or omissions of [Cheever], 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."
As a result, Cheever's contractual duty to indemnify Powell can only be triggered by an actual finding of negligence against it (Cheever) or one of its subcontractors, namely AZ Neptune. Here, it is undisputed that Cheever's subcontractor, AZ Neptune, exercised exclusive supervision and control over the demolition work giving rise to plaintiff's injury. As such, it is clear that plaintiff's accident falls within the scope of the above-referenced indemnification clause. Accordingly, Powell is entitled to summary judgment on its third-party cause of action for contractual indemnity ( see Rivera v. Urban Health Plan, Inc., 9 AD3d 322, 323).
To the extent that Powell seeks summary judgment on its common-law indemnity claim against Cheever, that aspect of the motion is denied since Powell has failed to make a prima facie showing that Cheever either controlled the plaintiff's activities or was negligent in any manner.
Breach of Contract for Failure to Procure Insurance
Powell contends that, pursuant to the terms of the Powell/Cheever contract, Cheever was required to procure comprehensive general liability insurance naming Powell as an additional insured, and that it failed to do so. Although Cheever provided Powell with a certificate of insurance, which indicated that Powell was named on a primary insurance policy issued by Underwriters at London, Powell contends that, to date, Underwriters at London has refused to provide defense and indemnification for the plaintiff's accident claiming that Powell was never actually written under that policy. As a result, Powell contends that it is entitled to summary judgment on the issue of whether Cheever is liable to it for any damages associated with its failure to acquire such insurance.
In opposition, Cheever maintains that it did take steps to obtain the necessary insurance and to have Powell named as an additional insured on its general liability insurance policy with Underwriters at Lloyds. In this regard, Cheever contends that it made a request to its insurance broker, Nancy Hardy, that Powell be named as an additional insured, and that Ms. Hardy, in turn, made a request to Cheever's insurance company's agent. Cheever contends that, if there was a failure to write a policy naming Powell as an additional insured, Underwriters at Lloyds and/or its agents are liable and, therefore, Powell is limited to seeking relief from them rather than it.
A promisee seeking summary judgment based upon a promisor's failure to name the promisee as an additional insured, as required by the contract between the two, need only show that the contract so required and that the promisor failed to comply with this provision ( see Kinney v. G.W. Lisk Co., 76 NY2d 215; DiMuro v. Town of Babylon, 210 AD2d 373; Morel v. City of New York, 192 AD2d 428; Roblee v. Corning Community College, 134 AD2d 803).
Here, the agreement between these parties clearly required that Cheever procure insurance naming Powell as an additional insured. Despite Cheever's alleged efforts to have Powell added as an additional insured on its general liability insurance policy with Underwriters at Lloyds, in opposition to Powell's application, Cheever has failed to establish that it in fact procured the requisite insurance on behalf of Powell. It is irrelevant that Cheever's insurance broker issued a certificate of insurance which indicated that Powell was an insured entity under the Underwriters' at Lloyds' policy since the certificate was issued "as a matter of information only" and thus could not serve to alter the actual coverage as set forth in the policy ( see Buccini v. 1568 Broadway Assocs., 250 AD2d 466). Indeed, the certificate, standing alone, is insufficient evidence that the requisite insurance was in fact procured ( see Trapani v. 10 Arial Way Assocs., 301 AD2d 644; American Ref-Fuel, Hempstead v. Resource R., 248 AD2d 420; McGill v. Polytechnic University, 235 AD2d 400). Moreover, the court notes that the certificate of insurance provided indicates that the subject policy period was from 07/01/01 to 10/01/01, which expired the day before plaintiff's accident occurred. Based upon the foregoing, the court finds that Powell has made a prima facie showing that Cheever failed to procure the requisite liability insurance ( see Keelan v. Sivan, 234 AD2d 516), and that Cheever has failed to raise an issue of fact establishing otherwise. Accordingly, that branch of Powell's motion seeking summary judgment on its breach of contract claim for failure to procure insurance is granted.
Conclusion
In sum, plaintiff's cross motion seeking partial summary judgment on the issue of liability under his Labor Law § 240(1) claim is granted. Powell's motion is granted to the extent that it seeks summary judgment on its third-party claims against Cheever for contractual indemnity and breach of contract for failure to procure insurance. Cheever's motion seeking summary judgment on its fourth-party common-law indemnity claim against AZ Neptune is granted.
The foregoing constitutes the decision and order of the court.