Opinion
106495/04.
Decided on April 23, 2008.
This is an action to recover damages for personal injuries sustained by a laborer at a construction site located at 18 West 17th Street, New York, New York on January 8, 2004. Pursuant to CPLR 3212, third-party defendant D'Aprile Inc. (D'Aprile) moves for summary judgment dismissing the claims of third-party plaintiff The Center for Jewish History, Inc. (Center), as well as any other claims against it (Motion Seq. No. 001) . Third-party defendant Orion Mechanical Systems, Inc. (Orion) cross-moves for summary judgment dismissing Center's third-party claims against it.
Anthony Pepe ("plaintiff") and Barbara Pepe (together, "plaintiffs") move for summary judgment in their favor as to liability on their Labor Law § 240 (1) claim against Center, and move for an order directing an immediate trial on the issue of damages, pursuant to CPLR 3212 (c) (Motion Seq. No. 002). Center cross-moves for summary judgment dismissing plaintiffs' complaint, and all cross claims and third-party counterclaims against it. Defendant CCC Custom Carpentry Corp. (Custom) cross-moves for summary judgment dismissing Center's cross claims against it.This decision addresses the two motions and three cross motions.
Pursuant to a Stipulation of Discontinuance dated November 17, 2006, the third-party action and all cross claims against third-party defendant Component Assembly Systems, Inc. were discontinued with prejudice.
BACKGROUND
Non-party Bovis Lend Lease, Inc. (Bovis) was the construction manager for a project involving the construction of a six-story addition on top of an existing six-story building owned by Center (the project). Plaintiff, who was employed as a laborer by Bovis, was assigned to jackhammer, clean up demolition debris and perform patch-up work at the site.
Prior to the date of plaintiff's accident, D'Aprile entered into a contract with Bovis, wherein D'Aprile agreed to supply and perform some masonry work on the project. Orion entered into a contract with Bovis, wherein Orion agreed to perform HVAC installation work for the project. Bovis also contracted with Custom to perform certain carpentry and general construction in the area.
Plaintiff testified that, on the day of his accident, he was assigned to the roof area of the building for debris removal. Plaintiff stated that he and other workers accessed the roof area by taking an exterior elevator to the roof level and walking across a ramp onto the roof itself. However, although plaintiff testified that he had observed the ramp in place approximately one week prior to his accident, on the day of his accident, the ramp leading from the elevator platform to the roof was missing. A short brick parapet wall, approximately two feet high, which was in the process of being constructed, was in the ramp's place. Thus, in order to access the roof on the day of his accident, plaintiff asserted that he "had to go over the wall" (Orion Notice of Cross Motion, Exhibit A, Pepe Deposition, dated July 25, 2006, at 40).
Plaintiff stated that, after hopping over the wall and expecting to land on the roof, he instead landed on a one-half inch thick piece of plywood which had been laid over a hole in the roof (the hole). The hole measured approximately three feet in diameter and was located approximately four to five feet from the brick wall. As the unattached piece of plywood was not able to support plaintiff's weight, it collapsed when plaintiff landed on it, causing plaintiff to fall 12 to 13 feet through the hole to the floor below and sustain injuries. Plaintiff noted that, due to the presence of bricklayers in the area where he exited the elevator, only one route to the roof area was available to him.
Plaintiff also testified that he noticed the subject hole months prior to the day of his accident. However, during that time, the hole's covering was much more substantial and clearly marked with orange paint. In fact, plaintiff stated that he had observed Bovis employees patching the hole by placing layers of two-by-four pieces of wood and plywood over it. The workers then utilized cross-bracing underneath those layers for further support, all of which had been screwed into the roof.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'" ( Santiago v Filstein , 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" ( Mazurek v Metropolitan Museum of Art , 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v City of New York, 49 NY2d 557, 562; DeRosa v City of New York , 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied ( Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]).
PLAINTIFF'S LABOR LAW § 240 (1) CLAIM AGAINST CENTER
Labor Law § 240 (1), also known as the Scaffold Law ( Ryan v Morse Diesel, 98 AD2d 615, 615 [1st Dept 1983]), provides, in relevant part:
All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting . . . shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
"Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold . . . or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" ( John v Baharestani, 281 AD2d 114, 118 [1st Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries ( Blake v Neighborhood Housing Servs. of NY City , 1 NY3d 280, 287; Felker v Corning Inc., 90 NY2d 219, 224-225; Torres v Monroe Coll. , 12 AD3d 261, 262 [1st Dept 2004]). "The statute is designed to protect workers from gravity-related hazards such as falling from a height, and must be liberally construed to accomplish the purpose for which it was framed [internal citations omitted]" ( Valensisi v Greens at Half Hollow, LLC , 33 AD3d 693, 695 [2d Dept 2006]).
Here, plaintiff was involved in work involving a gravity-related risk, so as to come within the purview of Labor Law § 240 (1), when, while proceeding from the elevator to the roof area to clear debris, he fell through a hole covered by a piece of unsecured plywood. Thus, as plaintiff was not provided with any safety devices, so as to prevent him from becoming injured, plaintiff is entitled to summary judgment in his favor on his Labor Law § 240 (1) claim against Center. The ramp, which would have provided access, had been removed and replaced by a wall which had to be surmounted. The plywood covering the hole was unsecured and insufficient to withstand the impact of a worker who had got over the wall. No safety devices were provided to have enabled plaintiff to safely traverse the area so as to have prevented the fall.
In a similar case, O'Connor v Lincoln Metrocenter Partners, L.P. ( 266 AD2d 60, 61 [1st Dept 1999]), plaintiff was also involved in work involving a gravity-related risk, when, while crossing the 19th floor after exiting from an elevator, he fell into a three-foot by four-foot opening in the floor, when the plywood that had been placed over it shifted and gave way ( see also Figueiredo v New Palace Painters Supply Co. Inc. , 39 AD3d 363, 493-494 [1st Dept 2007] [plaintiff sustained her prima facie burden on her Labor Law § 240 (1) claim through admissible evidence that her decedent, who had not been provided with any safety devices, fell through an open hole covered with an unsecured piece of plywood]; Valensisi, 33 AD3d at 695 [where decedent was performing work on the ground floor of a building under construction, in close proximity to two openings covered only with unsecured plywood boards, decedent's work exposed him to an elevation-related risk]; Lardaro v New York City Bldrs. Group, 271 AD2d 574, 576 [2d Dept 2000]; Carpio v Tishman Constr. Corp. of NY, 240 AD2d 234, 235 [1st Dept 1997] [where plaintiff was injured when he stepped into an uncovered hole as he was walking along a concrete floor while extending a paint roller up to the ceiling, court held that plaintiff's work subjected him to an elevation-related risk covered by Labor Law § 240 (1)]).
Contrary to Center's contention, plaintiff was not the sole proximate cause of his injuries, as any alleged contributory negligence attributable to him is immaterial, because the statutory violation has been established as a proximate cause of his injuries ( see Figueiredo, 39 AD3d at 364; Valensisi, 33 AD3d at 696 [where "a violation of Labor Law § 240 (1) is a proximate cause of an accident, the worker's conduct cannot be deemed solely to blame for it"]).
Thus, plaintiffs are entitled to summary judgment in their favor as to liability on their Labor Law § 240 (1) claim against Center. Accordingly, the branch of Center's summary judgment motion to dismiss plaintiff's Labor Law § 240 (1) claim is denied.
Plaintiffs' request for an immediate trial on the issue of damages is denied. Plaintiffs offer no justification for trying the issue of damages before trying the issues of Center's liability under other theories of liability which plaintiffs have asserted, which are discussed below.
PLAINTIFF'S LABOR LAW § 241 (6) CLAIM AGAINST CENTER
Labor Law § 241 (6) provides, in pertinent part, as follows:
"All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
* * *
(6)All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. . . ."
Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety to workers ( see Ross, 81 NY2d at 501-502). However, Labor Law § 241 (6) is not self-executing, and in order to show a violation of this statute, and withstand a defendant's motion for summary judgment, it must be shown that the defendant violated a specific, applicable, implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety ( id.).
Although plaintiff alleges violations of various OSHA regulations, as well as multiple violations of the Industrial Code in his bill of particulars, with the exception of Industrial Code 12 NYCRR 23-1.7 (b) (1) (i) and 12 NYCRR 23-1.7 (b) (1) (iii) (a), plaintiff failed to address these violations in his moving papers. Thus, this Court deems as abandoned those parts of plaintiff's Labor Law § 241 (6) claim predicated on those violations not mentioned by plaintiff in the motion papers ( see Genovese v Gambino, 309 AD2d 832, 833 [2d Dept 2003]).
Industrial Code 12 NYCRR 23-1.7 (b) (1) (i) sets forth that
[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).
Initially, it should be noted that Industrial Code § 23-1.7 (b) (1) is sufficiently specific to support plaintiff's Labor Law § 241 (6) claim ( see Olsen v James Miller Marine Serv., Inc. , 16 AD3d 169, 171 [1st Dept 2005]).
Center is not entitled to summary judgment in its favor on that part of plaintiff's Labor Law § 241 (6) claim predicated on a violation of Industrial Code § 23-1.7 (b) (1) (i), as the hole, which was covered by only an unsecured piece of plywood, was not sufficiently guarded by a substantial cover or by a safety railing at the time of plaintiff's accident.
Center is entitled to summary judgment dismissing so much of plaintiff's Labor Law § 241 (6) claim that is predicated on a violation of Industrial Code 12 NYCRR 23-1.7 (b) (1) (iii). Industrial Code 12 NYCRR 23-1.7 (b) (1) (iii) (a) sets forth that
[w]here employees are required to work close to the edge of such an opening, such employees shall be protected as follows:
(a)Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening.
It should be noted that Industrial Code 12 NYCRR 23-1.7 (b) (1) (iii) (a) is sufficiently specific to support plaintiff's Labor Law § 241 (6) claim ( see Dzieran v 1800 Boston Road, LLC , 25 AD3d 336, 338 [1st Dept 2006]; Luckern v Lyonsdale Energy Limited Partnership, 281 AD2d 884, 886 [4th Dept 2001).
Plaintiff testified that he fell 12 to 13 feet to the permanent floor below the roof, thus showing that the requirement that planking be installed not more than one floor or 15 feet, whichever is less, beneath the opening, had been satisfied. In addition, plaintiff did not raise an issue of fact as to whether the permanent flooring to which plaintiff fell was at least the equivalent strength of two-inch planking ( see id.).
PLAINTIFF'S COMMON-LAW NEGLIGENCE AND LABOR LAW § 200 CLAIMS AGAINST CENTER
Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work' [citation omitted]" ( Cruz v Toscano, 269 AD2d 122, 122 [1st Dept 2000]; see also Russin v Louis N. Picciano Son, 54 NY2d at 317). Labor Law § 200 (1) states, in pertinent part, as follows:
"1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
In this case, plaintiff's injuries stemmed not from the manner in which he performed his work, but from the unsafe condition that was created when the once substantial hole covering was replaced by an unsecured and inadequately supportive piece of plywood. In such a case, the proponent of a Labor Law § 200 claim must demonstrate that the defendant created or had actual or constructive notice of the allegedly unsafe condition that caused the accident ( see Keating v Nanuet Board of Educ. , 40 AD3d 706, 708-709 [2d Dept 2007] [where plaintiff's injuries stemmed not from the manner in which the work was performed, but rather from a dangerous condition on the premises, general contractor was liable in common-law negligence and Labor Law § 200 when it had control over the work site and actual or constructive notice of the same]; Thomas v Claffee , 24 AD3d 749, 751 [2d Dept 2005]; Murphy v Columbia Univ. , 4 AD3d 200, 202 [1st Dept 2004] [to support finding of a Labor Law § 200 violation, it was not necessary to prove general contractor's supervision and control over plaintiff because the injury arose from the condition of the work place created by or known to contractor, rather than the method of plaintiff's work]).
Here, there is no evidence in the record to demonstrate that Center created or had actual or constructive notice of the unsafe condition at issue, and plaintiff did not oppose that part of Center's motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 against it. Therefore, Center is granted summary judgment dismissing these claims.
Dismissal of plaintiffs' common-law negligence and Labor Law § 200 claims against Center necessarily results in dismissal of Custom's cross claims against Center for common-law contribution.
D'APRILE'S MOTION FOR SUMMARY JUDGMENT DISMISSING CENTER'S THIRD PARTY CLAIMS AGAINST IT
D'Aprile moves for summary judgment dismissing Center's third-party claims for contractual indemnification, common-law indemnification or contribution and failure to procure insurance against it, on the ground that plaintiff's injuries were not caused as a result of any negligence on the part of D'Aprile.
CENTER'S CLAIMS AGAINST D'APRILE FOR COMMON-LAW INDEMNIFICATION or CONTRIBUTION
"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'" ( Perri v Gilbert Johnson Enters., Ltd. ,14 AD3d 681, 684-685 [2d Dept 2005], quoting Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; Priestly v Montefiore Med. Ctr./Einstein Med. Ctr. , 10 AD3d 493, 495 [1st Dept 2004]). In the absence of any negligence, a claim for common-law indemnity may be established upon a showing 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 [2d Dept 2003]).
"Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person [internal quotations and citations omitted]" ( Godoy v Abamaster of Miami, Inc., 302 AD2d 57, 61-62 [2d Dept 2003]).
"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty, a breach of that duty, and that the breach of such duty was the proximate cause of his or her injuries" ( Marasco v C.D.R. Elecs. Sec. Surveillance Sys. Co. , 1 AD3d 578, 579 [2d Dept 2003]; Zavaro v Westbury Prop. Inv. Co., 244 AD2d 547, 547-548 [2d Dept 1997]).
Center argues that D'Aprile is not entitled to summary judgment dismissing Center's third-party claims against it, as an issue of fact exists as to whether D'Aprile was negligent in constructing the parapet wall in such a manner so as to block plaintiff's access from the elevator to the roof, which D'Aprile knew to be the only route by which workers could reach the roof in order to perform their tasks. As the ramp was missing on the day of his accident to accommodate the construction of the parapet wall, plaintiff had no choice but to go over the wall in order to reach the roof. Thus, but for this blockage put in place by D'Aprile, plaintiff would not have jumped over the parapet wall and landed on the unsecured plywood covering the hole.
However, although D'Aprile's construction of the parapet wall may have obstructed plaintiff's access to the roof area, there is no evidence in the record to demonstrate that it was D'Aprile's duty to provide a safer alternate route. In addition, D'Aprile has established that it was not involved in any way with the creation of the hole in the roof, or in the installation or maintenance of the plywood hole covering at issue at the time of plaintiff's accident. Jason Renna (Renna), D'Aprile's executive project manager and on-site supervisor, testified that D'Aprile's work as mason contractor at the job site was limited to facade brick work and the construction of the parapet wall on the outside of the roof. Renna further explained that a parapet is the outside face, or wall, above the roof. He noted that all work done by D'Aprile was accomplished by scaffolds, and that no D'Aprile employee accessed the roof or performed work on the roof at any time. In addition, Renna testified that D'Aprile did not use plywood at the job site.
Thus, as plaintiff's accident was not caused as a result of any negligence on the part of D'Aprile, D'Aprile is entitled to summary judgment dismissing Center's third-party claims for common-law indemnification or contribution against it. In addition, D'Aprile is entitled to summary judgment dismissing Orion's cross claim for common-law indemnification and contribution as against it.
CENTER'S CLAIM AGAINST D'APRILE FOR CONTRACTUAL INDEMNIFICATION
"A party is entitled to full contractual indemnification 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'" ( Drzewinski v Atlantic Scaffold Ladder Co., 70 NY2d 774, 777, quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153; see Torres v Morse Diesel Intl. , 14 AD3d 401, 402 [1st Dept 2005]). It is well settled that with respect to contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of its vicarious liability under Labor Law § 240 (1)." Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant' [citation omitted]" ( De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190, 193 [1st Dept 2003]; Keena v Gucci Shops, 300 AD2d 82, 82 [1st Dept 2002]).
Initially, it should be noted that, as Center's liability for plaintiff's injuries in this case was solely vicarious, Center is not to be deemed negligent for contractual indemnification purposes.
The contract between Bovis and D'Aprile states in pertinent part:
To the fullest extent permitted by law, [D'Aprile] agrees to defend, indemnify and hold harmless Construction manager and owner . . . from and against any claim, cost, expense, or liability . . . caused by, arising out of, resulting from, or occurring in connection with the performance of the Work by [D'Aprile]
(Center's Affirmation in Opposition, Exhibit B, D'Aprile's Response, Exhibit C, Bovis/D'Aprile Contract, at 9).
Here, the indemnification provision at issue provides for D'Aprile to indemnify Center in the event that the claim arises out of or in connection with D'Aprile's work, despite the fact that D'Aprile may not have been found negligent in performing its work. Thus, as an issue of fact exists as to whether the subject ramp was removed as a necessary step in D'Aprile's construction of the parapet wall, such that plaintiff's fall occurred in connection with the performance of D'Aprile's work, D'Aprile is not entitled to summary judgment dismissing Center's claim for contractual indemnification against it ( see Brown v Two Exchange Plaza Partners, 76 NY2d 172, 178 [although there was no evidence of negligence on the part of the subcontractor, the subcontractor's unambiguous promise to indemnify a general contractor for any claim" arising out of, in connection with or as a consequence of the performance of the Work'" was valid and enforceable]).
CENTER'S CLAIM AGAINST D'APRILE FOR FAILURE TO PROCURE INSURANCE
Pursuant to the contract between Bovis and D'Aprile, D'Aprile agreed to obtain commercial general liability insurance in the amount of $500,000 per occurrence for, among other things, bodily injury by accident, with an endorsement naming Center and Bovis as additional insureds. In its Response To Combined Demands, dated September 21, 2006, D'Aprile asserted that "D'Aprile, Inc. was insured by Farm Family Casualty Insurance Policy No. 3130L6530 for one million dollars each occurrence with excess umbrella coverage Policy No. 3130E1319" (Center's Affirmation in Opposition, Exhibit B, D'Aprile Response). In addition, a certificate of insurance, which lists D'Aprile as the insured and Center and Bovis as additional insureds under said policy, as well as copies of the endorsements to that policy, are included in the record.
As Center has failed to present evidence to rebut D'Aprile's showing that it procured insurance for the benefit of Center, as required by contract, D'Aprile is entitled to summary judgment dismissing Center's claim for failure to procure insurance.
ORION'S CROSS MOTION FOR SUMMARY JUDGMENT DISMISSING CENTER'S THIRD-PARTY CLAIMS AGAINST IT
Orion moves for summary judgment dismissing Center's third-party claims against it for contractual indemnification, common-law indemnification or contribution and failure to procure insurance, on the ground that plaintiff's injuries were not caused in connection or as a result of any work performed by Orion.
Sandor Alvarez (Alavarez), Orion's steamfitter superintendent, testified that Orion was hired to install a new HVAC air-handling system to be located on the roof of the building, which involved running piping to and from the rooftop units. Alvarez stated that the piping was to be installed through the roof, yet contained within the various units installed by Orion. Alvarez maintained that Orion did not perform any work on the roof during the months of December of 2003 or January 2004, as the penetrations for the piping were performed by the general contractor during those months. In addition, Alvarez testified that the general contractor was responsible for the installation of plywood protection at the site, as well as its removal.
Peter Vrankovic (Vrankovic), project manager for Orion in charge of managing the installation of the HVAC system, testified that the work being performed on the roof by Orion involved the installation of an air handling unit, humidifiers and exhaust fans. Vrankovic also explained that, in order to create the ducts necessary for these installations, it was the custom and practice for the general contractor to cut the ventilation or penetration holes in the roof, as well as to install protection over those holes.
Richard Kern (Kern), president of non-party Cool Sheet Metal, Inc. (Cool), testified that Orion subcontracted the duct air system work for the project to Cool to commence on January 9, 2004, the day after plaintiff's accident. Kern noted that the general contractor of a union job usually hires laborers or roofers to penetrate the roof as needed, and then to protect the openings.
Initially, it should be noted that Center did not oppose Orion's cross motion for summary judgment dismissing Center's third-party complaint against it. Thus, the Court deems Center's third-party claims as against Orion as abandoned ( see Genovese v Gambino, 309 AD2d at 833).
In any event, as Orion has established that neither it, nor its subcontractor, Cool, were involved in any way with the creation of the hole in the roof, or in the installation or maintenance of the plywood covering the hole at issue at the time of plaintiff's accident, Orion is entitled to summary judgment dismissing Center's third-party claims against it, as well as D'Aprile's cross claim for indemnification against it. As Center's third-party claims against Orion are dismissed, Center is entitled to summary judgment dismissing Orion's cross claim for indemnification as against it.
CUSTOM'S CROSS MOTION FOR SUMMARY JUDGMENT DISMISSING CENTER'S CROSS CLAIMS AGAINST IT
Custom cross-moves for summary judgment dismissing Center's cross claim against it for contractual and common-law indemnity, as well as failure to procure general liability insurance, on the ground that plaintiff's accident was not caused in connection or as a result of work performed by Custom. In opposing Custom's cross motion, Center asserts that Custom is not entitled to summary judgment, because there are issues of fact as to whether Custom was negligent in removing the original protection and replacing it with the piece of unsecured plywood, and had performed certain blocking work around the roof parapet wall which may have required removal of the hole's original protective covering.
It should be noted that plaintiff discontinued its action as against Custom, pursuant to stipulation of discontinuance, dated February 20, 2007. In addition, in said stipulation, Orion also discontinued its claims against Custom. D'Aprile did not bring any cross claims against Custom, and did not oppose Custom's motion.
As Custom has established that it was not responsible for the replacement of the original hole protection with the plywood hole covering at issue, Custom is entitled to summary judgment dismissing all cross claims against it. Plaintiff testified that, months prior to his accident, he observed Bovis employees installing a substantial covering over the hole. Plaintiff also testified that a week prior to his accident on January 8, 2004, he noticed that this original protection was still in place. Specifically, plaintiff stated that "[t]he week before, it was still there, that I can recall" (Custom Notice of Cross Motion, Exhibit G, August 9, 2005 Pepe Deposition, at 59).
Tommy Heilesen (Heilesen), a Custom employee, testified that, at the direction and control of Bovis, he had, in fact, constructed the initial hole covering, which had later been removed and replaced by only a flimsy piece of plywood. However, Heilesen also testified that he had completed all work on the roof of the building on December 19, 2003, and that he never returned to the roof to perform further work after that date.
Richard Rafferty (Rafferty), co-owner of Custom, testified that, in addition to constructing the original protective hole covering at issue, Custom also performed roof blocking work at the location, which required removing temporary protections in order to run the blocking around any openings. However, the superintendents' daily reports indicate that, while Custom may have performed other kinds of work on various floors in the building in proximity to the date of plaintiff's accident, Custom had completed its roof blocking work by December 24, 2003, more than a week prior to plaintiff's accident. In addition, no evidence has been presented to demonstrate that Custom negligently installed any blocking along the parapet wall, so as to block plaintiff's access to the roof. Thus, as plaintiff's accident was not caused in connection with or as a result of Custom's work, Custom is entitled to summary judgment dismissing Center's cross claims against it. As Center's third-party claims against Custom are dismissed, Center is entitled to summary judgment dismissing Custom's cross claim for indemnification as against it.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that the motion for summary judgment by third-party defendant D'Aprile, Inc. (Motion Seq. No. 001) is granted to the extent that the second and third causes of action of the third party complaint of The Center for Jewish History, Inc. (Center) are dismissed, the cross claim of third-party defendant Orion Mechanical Systems, Inc. is dismissed as against D'Aprile, Inc., and the motion is otherwise denied; and it is further
ORDERED that the cross motion for summary judgment by third-party defendant Orion Mechanical Systems, Inc. (Orion) is granted, the fourth, fifth, and sixth causes of action of Center's third-party complaint, as well as all cross claims against Orion, are severed and dismissed, and the Clerk is directed to enter judgment in favor of this third-party defendant, with costs and disbursements as taxed by the Clerk; and it is further
ORDERED that the motion for summary judgment by plaintiffs Anthony Pepe and Barbara Pepe (Motion Seq. No. 002) is granted to the extent that summary judgment is granted in their favor as to liability only on their Labor Law § 240 (1) claim against Center, and the motion is otherwise denied; and it is further
ORDERED that Center's cross motion for summary judgment is granted to the extent that plaintiffs' common-law negligence and Labor Law § 200 claims, and so much of plaintiffs' Labor Law § 241 (6) claim that is based on a violation of Industrial Code 12 NYCRR 23-1.7 (b) (1) (iii) (a) are dismissed, Custom's and Orion's cross claims against Center are dismissed, and Center's cross motion is otherwise denied; and it is further
ORDERED that the cross motion for summary judgment by defendant CCC Custom Carpentry Corporation is granted, Center's third-party complaint is severed and dismissed as to this third-party defendant, and the Clerk is directed to enter judgment in favor of this third-party defendant, with costs and disbursements as taxed by the Clerk; and it is further
ORDERED that the remainder of the action shall continue.