Opinion
Index No. 508534/18 Mot. Seq. 7 8 9 & 10
10-11-2022
JEREMY RAMJITSINGH, Plaintiff, v. 2269 FIRST AVE OWNERS, LLC and BDM SOLUTIONS LLC, Defendants. 2269 FIRST AVE OWNERS, LLC, Third-Party Plaintiff, v. BDM SOLUTIONS LLC and ENERGY ELEVATOR SERVICES, INC., Third-Party Defendants.
Unpublished Opinion
PRESENT: HON. DEBRA SILBER, JUSTICE
DECISION/ORDER
DEBRA SILBER, JUDGE
The following e-filed papers read herein:
NYSCEF Doc Nos.:
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed
141-142, 153-154, 176 178-179, 207-208, 232
Opposing Affidavits/Answer (Affirmations)
202, 204, 235, 239, 241, 244, 249, 252
Affidavits/ Affirmations in Reply
245, 247, 250, 251, 254, 255 258, 261, 264, 265, 266, 267
Upon the foregoing papers, third-party defendant Energy Elevator Services, Inc. (Energy) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the third-party complaint and any cross claims as against it (motion [mot.] sequence [seq.] number [no.] 7). Defendant/third-party defendant BDM Solutions LLC (BDM) moves for an order, pursuant to CPLR 3212, granting it: (1) summary judgment dismissing plaintiff's complaint and all cross claims against it; and (2) summary judgment in its favor on its cross claim for contractual indemnification from Energy (mot. seq. no. 8). Defendant/third-party plaintiff 2269 First Ave Owners, LLC (2269 First Ave) moves for an order, pursuant to CPLR 3212, granting it: (1) summary judgment dismissing the complaint and all cross claims and counterclaims against it; (2) summary judgment in its favor on its contractual indemnification claims against BDM and Energy; and (3) summary judgment in its favor on its breach of contract for failing to procure insurance claim against Energy (mot. seq. no. 9). Finally, plaintiff Jeremy Ramjitsingh cross-moves for an order, pursuant to CPLR 3212, granting him summary judgment with respect to liability (mot. seq. no. 10).
Background
In this action, plaintiff Jeremy Ramjitsingh (plaintiff) pleads causes of action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6) based on injuries he allegedly sustained when he was struck in the head by a 12-foot-long metal rod while walking near an elevator shaft located in a building undergoing a gut renovation. The building was owned by 2269 First Ave, which hired BDM to act as general contractor for the renovation project. BDM, in turn, hired Energy to install new elevators in the building. Plaintiff was employed by Energy as an apprentice/helper.
According to plaintiff's deposition testimony, the accident happened shortly after plaintiff had arrived for work and entered the building, while he was walking on the first floor toward Energy's storage area where plaintiff had left his hardhat, harness, and gloves. Before he reached the storage area and obtained his hardhat and other equipment, plaintiff was struck on the head by a metal rod that he believes had fallen from, and bounced out of, the elevator shaft. At the time plaintiff was struck by the rod, there was a ceiling over the area where he was walking and he was approximately five to 10 feet from the elevator shaft opening. In addition, plaintiff testified that he heard a "clanking noise" coming from the shaft seconds before he was hit in the head. Although there was netting in the shaft opening, the netting was only waist-high. The rod that fell, which was approximately 12-feet long and weighed approximately 10 to 15 pounds, was intended to be used to hold the elevator car's emergency brakes in place. Plaintiff asserted that he had seen that rod, which was supposed to be installed on the elevator at some point later that week, lying loose on the platform of the elevator car the day before the accident. Plaintiff, however, was unaware of any other object falling down the shaft during his two weeks on the job site.
Joshua Whitaker, an elevator mechanic employed at the time by Energy, was plaintiff's immediate supervisor, and was the only Energy employee at the job site on the day of the accident other than plaintiff. Whitaker testified at his deposition that he did not recall what he was doing at the time of the accident. When shown a text message received by plaintiff immediately after the accident stating, "Bro, I'm really sorry. I hope you're okay. I was removing the rigging and debris from the cartop," Whitaker, although he conceded that it was sent from his number, that it looked like his text and that it looked like something he would have sent, could not remember if that was what he was doing at the time of the accident. Whitaker also could not recall what floor he would have been working at if he had been removing debris from the cartop. While Whitaker testified that workers working in the shaft would on occasion drop material or tools, he did not recall any material falling down the shaft on the date of the accident and asserted that he would not have intentionally dropped anything down the shaft. In his time installing elevators, Whitaker did not recall an object that was dropped in an elevator shaft ever bouncing out of the shaft. Whitaker testified that part of the hardware for connecting the "safeties together" under the elevator car included a 12-foot rod, which he believed weighed approximately 5 pounds, but he did recall using that piece of equipment on the day of the accident. Whitaker did not know any other entities that would have used a 12-foot-long rod in their work and stated that, on the date of the accident, he was not aware of anyone else working in the shaft other than him. According to Whitaker, the mesh barricades in the shaft opening, which were installed by BDM, were approximately 42 inches high. While Whitaker stated that workers were supposed to wear hard hats on the site, he added that the rule was not enforced.
At his deposition, William Smith, Energy's owner and president, testified that, as of the time of the accident, the platform, which would become the floor of the elevator cab, had been installed, but the cab of the elevator had not yet been installed. There was nothing at the edge of the platform that would stop anything from falling off it, and there was space between the shaft and all four edges of the platform. In contrast to the testimony of plaintiff and Whitaker, Smith asserted that no 12-foot-long rods were to be used for the elevator in question or used by Energy in the installation of the elevators. Since elevator installation work in a shaft entailed drilling into concrete and similar activities, Smith stated that "material is going to fall down a shaft." However, he said, since they would have to clean up any objects or material they dropped down a shaft, the workers installing an elevator would never intentionally drop anything down the shaft. In addition, Smith asserted that in his experience of installing elevators (which work he had been performing nearly his entire work-life), he was unaware of an object ever falling down an elevator shaft and bouncing out of the shaft onto the floor. Smith also stated that the only purpose for the mesh safety barricades at the shaft openings was to prevent people from falling into a shaft, and they were not designed to prevent falling objects from coming out of the shaft. Additionally, Smith asserted that Energy required that hard hats be worn at all times on the job site and that the security guards required workers to have their hard hats on when they entered the job site.
In contrast to Smith's testimony, Dionyssios Maroulis, BDM's owner, who said he was on the job site two to three times per week, testified at his deposition that BDM had installed wood frames and solid plywood "covers" which completely covered the opening to the elevator shafts on each floor. In addition, Maroulis stated that they had also set up an approximately four-foot-high barricade consisting of a frame made of a heavy eight by eight-piece of wood and two-by-fours, which was covered with safety netting that stood approximately two feet out from each shaft opening. When Energy needed to access the shaft for its work, it would inform BDM, and BDM laborers would move the plywood shaft cover, which would open like a door, and also move the barricade covered with netting, to allow access to the shaft. This barricade covered with netting, however, would be put back into position to block off the opening and to keep anyone from getting too close to the opening or falling into the shaft. According to Maroulis, the elevator platform at issue was on the 9th floor, at the top of the shaft on the date of the accident. Finally, Maroulis asserted that, when he was on the job site, he did not observe any workers who were not wearing their hard hats.
Discussion
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). 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."
There is no dispute that the work plaintiff was performing is covered, as it was work in the "erection" or "altering" of a building under Labor Law § 240 (1) (see Fuchs v Austin Mall Assoc., LLC, 62 A.D.3d 746, 747 [2d Dept 2009]), and that 2269 First Ave, as owner, and BMD, as general contractor, may be held liable under section 240 (1) regardless of whether they actually supervised or controlled plaintiff's work (see Gordan v Eastern Ry. Supply, 82 N.Y.2d 555, 559-560 [1993]; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374 [2011]; Barker v Union Corrugating Co., 187 A.D.3d 1544, 1546 [4th Dept 2020]; Yaguachi v Park City 3 & 4 Apts., Inc., 185 A.D.3d 635, 635-636 [2d Dept 2020]). In addition, the fact that plaintiff had only just entered the jobsite and was walking to the storage area to get his safety equipment is not a bar to his recovery under the Labor Law (see Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 980 [2d Dept 2021]; Hoyos v NY-1095 Ave. of the Ams., LLC, 156 A.D.3d 491, 493-495 [1st Dept 2017]; Fassett v Wegmans Food Markets, Inc., 66 A.D.3d 1274, 1278 [3d Dept 2009]).
Here, as noted above, plaintiff testified that he observed the rod sitting on the elevator platform the day before the accident, that there was a ceiling over the area where he was walking, and that he heard clattering from the area of the shaft before the rod struck him in the head. Although Whitaker, in his testimony, could not recall what he was doing at the time of the accident, Whitaker's text message to plaintiff may allow an inference that Whitaker in some way caused the rod to fall while he was removing the debris and rigging from the cartop. Maroulis testified that the elevator platform was positioned at the ninth floor on the date of the accident. Considered together, this evidence is sufficient to allow an inference that Whitaker bumped, or in some other way moved the rod, so it rolled off the elevator platform, fell down the shaft from the ninth to the first floor, bounced off of something, and came out from the shaft and hit plaintiff.
It is noted that several of the parties refer to this text message, and that no party has raised any objection to its use or admissibility (see Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197, 202 [2d Dept 2019]; Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45, 54-55 [2d Dept 2014]). Although Whitaker, in the text, stated that he was working on the "cartop," it is evident from plaintiff's testimony that plaintiff considered the "cartop" to be the same place as what plaintiff referred to as the "platform" in his own testimony (Ramjitsingh tr at 101, lines 2-8).
Plaintiff, in moving, posits that the accident was caused by the failure to secure the rod to the platform, and/or the failure of defendants to ensure that the protection at the shaft openings covered the entire height of the opening in order to prevent falling objects from coming out of the shaft. The evidence that the rod was left in a position on the platform from which it could be knocked off or moved so it would roll off, may support a finding that a Labor Law § 240 (1) securing device was needed under the circumstances (see Outar, 5 N.Y.3d at 732; Cortes v Jing Jeng Hang, 143 A.D.3d 854, 855 [2d Dept 2016]; Podobedov v East Coast Constr. Group, Inc., 133 A.D.3d 733, 735 [2d Dept 2015]; Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 843 [2d Dept 2014]; Coque v Wildflower Estates Devs., Inc., 31 A.D.3d 484, 488 [2d Dept 2006]; Orner v Port Auth.of N.Y. & N.J., 293 A.D.2d 517, 517-518 [2d Dept 2002]; see also Wellington v Christa Constr. LLC, 161 A.D.3d 1278, 1280-1281 [3d Dept 2018]). However, plaintiff's testimony that the rod only weighed 10 to 15 pounds may result in a finding that it was too small to need a securing device (see Wiski v Verizon N.Y., Inc., 186 A.D.3d 1590, 1591 [2d Dept 2020]; Moncayo v Curtis Partition Corp., 106 A.D.3d 963, 964 [2d Dept 2013]). Because of the considerable distance that the rod could fall inside the shaft, the weight of the rod does not, in and of itself, preclude a finding that a securing device was necessary (see Peters v Structure Tone, Inc., 204 A.D.3d 522, 523-524 [1st Dept 2022]; Tropea v Tishman Constr. Corp., 172 A.D.3d 450, 451 [1st Dept 2019]; Wellington, 161 A.D.3d at 1281; Boyle v 42nd St. Dev. Project, Inc., 38 A.D.3d 404, 405-408 [1st Dept 2007]).
With respect to the inadequacy of the protective covers over the shaft openings, as noted above, Maroulis, BDM's owner, testified that BDM had installed plywood covers that sealed the entirety of each of the shaft openings, and they also installed shorter barriers which were used when Energy needed to access the openings. The fact that BDM had installed covers over the entirety of the shaft openings, covers which would have been unnecessary if the only risk relating to the shaft openings involved that of workers falling into the shafts, suggests that there was a recognized risk of objects falling and then flying out of the elevator shafts during the course of Energy's work. While an argument could be made that having the full plywood cover over the opening to the shaft could be contrary to the objectives of the work, while Energy was actually performing work at the opening, or in the shaft at the vicinity of the opening (see Salazar v Novalex Contr. Corp., 18 N.Y.3d 134, 137-138 [2011]), there is nothing in the record suggesting that Energy was performing work at the time of the accident other than Whitaker, who was working on the 9th floor (see Dias v City of New York, 110 A.D.3d 577, 577-578 [1st Dept 2013]). As such, there is a fact issue whether the absence of the full cover on the first floor shaft where plaintiff was walking at the time of his accident constituted a failure to provide adequate protection for purposes of Labor Law § 240 (1) (see Sarata v Metropolitan Transp. Auth., 134 A.D.3d 1089, 1092 [2d Dept 2015]; see also Peters, 204 A.D.3d at 524).
These factual issues with respect to the need for securing devices and/or protection at the shaft openings require denial of the portion of defendants' motions which seek dismissal of plaintiff's Labor Law § 240 (1) cause of action. Further, to the extent it is raised by defendants' motion papers, plaintiff's failure to wear a hardhat at the time of the accident cannot constitute the sole proximate cause of the accident, or render him a recalcitrant worker, for purposes of a section 240 (1) claim, because a hard hat is not a section 240 (1) safety device (see Mercado v Caithness Long Is. LLC, 104 A.D.3d 576, 577 [1st Dept 2013]; Singh v 49 E. 96 Realty Corp., 291 A.D.2d 216, 216 [1st Dept 2002]; see also Peters, 204 A.D.3d at 524 [failure to wear safety goggles not sole proximate cause since not section 240 safety device]).
Plaintiff's cross motion, however, must also be denied with respect to his Labor Law § 240 (1) claim given that the record does not show that a securing device was required as a matter of law, particularly in view of the fact that plaintiff did not witness what caused the rod to fall, and the fact that Whitaker could not recall what he was doing at the time of the accident (see Madkins v 22 Little W. 12th St., LLC, 191 A.D.3d 434, 435 [1st Dept 2021]; Henriquez v Grant, 186 A.D.3d 577, 577-578 [2d Dept 2020]; Pazmino v 41-50 78th St. Corp., 139 A.D.3d 1029, 1030 [2d Dept 2016]; Podobedov, 133 A.D.3d at 735; Wysk v New York City School Constr. Auth., 87 A.D.3d 1131, 1132 [2d Dept 2011]; Gonzalez v TJM Constr. Corp., 87 A.D.3d 610, 611 [2d Dept 2011]; see also Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339-340 [2011]; but see Humphrey v Park View Fifth Ave. Assoc. LLC, 113 A.D.3d 558, 559 [1st Dept 2014]). Likewise, in view of Smith and Whitaker's deposition testimony suggesting that it would be highly unusual for a dropped object to "bounce out" of an elevator shaft, and in view of the absence of any regulations that unequivocally require netting or a barrier covering the entirety of an opening into an elevator shaft, there are issues of fact as to whether the height of the mesh barricade on the first floor violated Labor Law § 240 (1) (cf. Sarata, 134 A.D.3d at 1092).
Labor Law § 241-a only applies to workers working "in or at elevator shaftways," and plaintiff, who testified that he was 5 to 10 feet from the opening, cannot be deemed to be working "in or at" a shaftway (see also 12 NYCRR 23-2.5 [protections for workers working in shafts]; Labor Law § 241 [6] [shaft opening for elevator in use for lifting materials protected by three to four foot high barrier). Regarding the protection of workers other than those actually working in the shaft, the focus of Industrial Code provisions relating to shafts is on protecting workers from falling into shafts, not objects bouncing out (see 12 NYCRR 23-2.5 [b] [6] [addressing existing elevators and requiring that the exterior doors on elevator shaft be kept closed (here the elevator shaft was newly installed, not existing, and the exterior doors had not yet been installed or if work required doors to be open, the provision of a chain or other barrier 36 to 42 inches in height or person stationed at the door opening to prevent unauthorized entrance to the opening]; see also 12 NYCRR 23-1.7 [a] [2]). OSHA sections addressing fall protection and protection from falling objects do not appear to require more than a 42-inch-high barricade at the opening (see 29 CFR §§ 1926.501 & 1926.502).
This court finds that the conclusory assertions of the engineers contained in the affidavits submitted by plaintiff and BDM may not be relied upon in support of their respective claims (see Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium, 38 N.Y.3d 1037, 1039 [2022]; Podobedov, 133 A.D.3d at 735).
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, bases his section 241 (6) cause of action on violations of Industrial Code sections 12 NYCRR 23-1.5, 23-1.7 (a), 23-1.7 (b), 23-1.7 (f), 23-1.8 (c), 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.20, 23-1.32, 23-1.33 (a) (1), (2) and (3), 23-1.33 (f), 23-2.1 (a) (1) and (2), 23-2.1 (b), 23-2.4 (a), 23-2.4 (b), 23-2.5 (a) (1) and (2), and 23-2.5 (b) (1) through (6).
With respect to 12 NYCRR 23-1.8 (c) (requiring wearing of "safety hats"), testimony that hard hats were required in all areas of the job site is sufficient to demonstrate factual issues regarding the applicability of section 23-1.8 (c) (see McLean v 405 Webster Ave. Assoc., 98 A.D.3d 1090, 1095 [2d Dept 2012]; see also Seales v Trident Structural Corp., 142 A.D.3d 1153, 1157 [2d Dept 2016]) and plaintiff's testimony that he was not instructed to wear a hard hat in all areas of the job site is sufficient to require denial of defendants' motion in this respect (see McLean v 405 Webster Ave. Assoc., 26 Misc.3d 1219[A], 2010 NY Slip Op 51396[U], *13 [Sup Ct, Kings County 2010], affd 98 A.D.3d 1090 [2d Dept 2012]; see also Sheley v Kingsfort Builders, Inc., 207 A.D.3d 1155, 1156 [4th Dept 2022]; cf. Beshay v Eberhart L.P. No. 1, 69 A.D.3d 779, 781 [2d Dept 2010]; McCormack v Universal Carpet & Upholstery Cleaners, 29 A.D.3d 542, 544 [2d Dept 2006]; McLoud v State of New York, 237 A.D.2d 783, 784-785 [3d Dept 1997]). The fact that the rod struck plaintiff in the head suggests that wearing a hard hat may have prevented or reduced his injuries. That fact alone, however, is insufficient to demonstrate the absence of factual issues as to whether the failure to wear the hard hat was a proximate cause of his injuries (see McLean, 98 A.D.3d 1090 at 1095).
Turning to 12 NYCRR 23-2.1 (a) (1) (all building materials required to be stored in safe manner), and 12 NYCRR 23-2.1 (a) (2) (material should not be placed so close to any edge of a platform so as to endanger any person beneath such edge), plaintiff's testimony that the rod was left lying on the elevator platform awaiting installation later in the week is sufficient to demonstrate factual issues as to whether the rod was properly stored within the meaning of those sections, requiring denial of defendant's motion (see Parrino v Rauert, 208 A.D.3d 672, 675 [2d Dept 2022] [addressing section 23-2.1 (a) (1)]; Slowe v Lecesse Constr. Servs., LLC, 192 A.D.3d 1645, 1646 [4th Dept 2021] [addressing section 23-2.1 (a) (1)]; Rodriguez v DRLD Dev., Corp., 109 A.D.3d 409, 410 [1st Dept 2013]; see also Ginter, 121 A.D.3d at 843 [addressing section 23-2.1 (a) (2)]; Fountaine v Juniper Assoc., 67 A.D.3d 608, 609 [1st Dept 2009]). However, given the lack of detail in plaintiff's testimony in this regard, and given that it is unclear exactly how the rod was caused to fall, plaintiff's cross motion must also be denied (see Ortiz, 18 N.Y.3d at 339-340).
On the other hand, since nothing in the record suggests that the area where plaintiff was walking was "normally exposed to falling material or objects," defendants are entitled to dismissal of the Labor Law § 241 (6) claim to the extent premised on 12 NYCRR 23-1.7 (a) (1) and 23-1.7 (a) (2). In addition, plaintiff may not rely on 12 NYCRR 23-2.1 (b) because that section lacks the specificity required to support a cause of action under section 241 (6) (see Ginter, 121 A.D.3d at 844; Longo v Long Is. R.R., 116 A.D.3d 676, 677 [2d Dept 2014]). Defendants have also demonstrated their prima facie entitlement to dismissal of the section 241 (6) cause of action with respect to the remaining Industrial Code sections because they either are inapplicable to the facts of the case or do not state specific standards, and plaintiff has abandoned reliance on these remaining sections by failing to address them in his moving or 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]). In sum, the BDM and 2269 First Ave are entitled to summary judgment dismissing the plaintiff's Labor Law section 241 (6) cause of action to the extent that it is premised on 12 NYCRR 23-1.5, 23-1.7 (a), 23-1.7 (b), 23-1.7 (f), 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.20, 23-1.32, 23-1.33 (a) (1), (2) and (3), 23-1.33 (f), 23-2.1 (b), 23-2.4 (a), 23-2.4 (b), 23-2.5 (a) (1) and (2), and 23-2.5 (b) (1) through (6).
As noted above, while Whitaker and Smith testified regarding the general risk of objects falling during elevator installation, both Whitaker and plaintiff, in their deposition testimony, asserted that they were unaware of any objects falling down the shaft, let alone into the first-floor area where plaintiff was walking, prior to plaintiff's accident.
Labor Law § 200 and Common-Law Negligence
When 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]). Without more, an owner or contractor's authority to stop the work or their general supervisory authority over the injury-producing work is insufficient to demonstrate supervision and control for purposes of liability under the common law and Labor Law § 200 (see Murphy v 80 Pine, LLC, 208 A.D.3d 492, 495 [2d Dept 2022]; Poulin v Ultimate Homes, Inc., 166 A.D.3d 667, 670-673 [2d Dept 2018]; Goldfien v County of Suffolk, 157 A.D.3d 937, 938 [2d Dept 2018]; Messina v City of New York, 147 A.D.3d 748, 749-750 [2d Dept 2017]).
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]).
Here, with respect to 2269 First Ave, the adequacy of the protection at the shaft openings falls within the means and manner of work, not a dangerous property condition (see Schwind v Mel Lany Constr. Mgt. Corp., 95 A.D.3d 1196, 1198 [2d Dept 2012], lv dismissed 19 N.Y.3d 1020 [2012]; McKay v Weeden, 148 A.D.3d 1718, 1720-1721 [4th Dept 2017]; Gillis v Brown, 133 A.D.3d 1374, 1376 [4th Dept 2015]; Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449 [1st Dept 2013]). The deposition testimony of plaintiff, Smith, Whitaker and Maroulis further shows that 2269 First Ave generally did not exercise supervision and control over Energy's performance of its work or over BDM's erection of and maintenance of the barricades at the shaft openings. Smith, however, testified that the security guards (who were concededly employed by 2269 First Ave) regulated the entry of persons onto the job site and required that everyone entering the job site wear a hard hat. Smith's testimony is sufficient to demonstrate factual issues regarding 2269 First Ave's control over the wearing of hard hats, and whether the security guard's failure to require plaintiff to wear a hard hat upon his entry to the job site on the date of the accident constitutes negligence for purposes of plaintiff's common-law negligence and Labor Law § 200 causes of action. Thus, the portion of 2269 First Ave's motion seeking dismissal of those claims is denied (see Agli v 21 E. 90 Apts. Corp., 195 A.D.3d 458, 460 [1st Dept 2021]; see also Ortiz, 18 N.Y.3d at 340; cf. Dawson v Diesel Constr. Co., 51 A.D.2d 397, 399 [1st Dept 1976]).
BDM concededly assumed the responsibility to erect the protective barriers at the shaft openings. Given, as discussed with respect to plaintiff's Labor Law § 240 (1) cause of action, Maroulis testified that these barriers (except when moved for Energy's work) covered the entirety of the opening, it can be inferred that they were intended to do more than protect workers from falling into the shaft. There are thus factual issues as to whether BDM's apparent removal of the full cover on the first floor, and their failure to replace it, created a dangerous condition. This requires denial of its motion with respect to plaintiff's Labor Law § 200 and common-law negligence claims (see Clifton v Collins, 202 A.D.3d 1476, 1477-1478 [4th Dept 2022]; Sotarriba v 346 W. 17th St. LLC, 179 A.D.3d 599, 601 [1st Dept 2020]; McKay v Weeden, 148 A.D.3d 1718, 1720-1721 [4th Dept 2017]; Simon v Granite Bldg. 2, LLC, 114 A.D.3d 749, 754 [2d Dept 2014]; cf. Poulin, 166 A.D.3d at 671-672 [dangerous condition at stairway opening created by contractor's method of work]).
On the other hand, the factual issues relating to whether 2269 First Ave had assumed responsibility for supervising the wearing of hard hats, and whether BDM's failure to cover the entirety of the elevator shaft on the first floor was negligent, require the denial of the portion of plaintiff's motion for summary judgment on his common-law negligence and Labor Law § 200 causes of action.
Cross Claims and Third-Party Claims
The portion of 2269 First Ave's motion seeking summary judgment in its favor on its contractual indemnification claims against BDM and Energy must be denied in light of the above noted factual issues relating to the possibility of its own negligence (see Graziano v Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1260 [2d Dept 2019]; McDonnell v Sandaro Realty, Inc., 165 A.D.3d 1090, 1096-1097 [2d Dept 2018]). Aside from issues relating to 2269 First Ave's own negligence, BDM, in opposition, has demonstrated that its insurer accepted 2269 First Ave's tender and agreed that 2269 First Ave was an additional insured under BDM's policy, and thus, the anti-subrogation principle bars summary judgment on 2269 First Ave's contractual indemnification claim (see Aguilar v Graham Terrace, LLC, 186 A.D.3d 1298, 1302 [2d Dept 2020]). The issues with respect to 2269 First Ave's own negligence also require denial of the portion of its motion seeking dismissal of the common-law indemnification and contribution claims against it (see Zong Wang Yang v City of New York, 207 A.D.3d 791, 796-797 [2d Dept 2022]).
BDM is not entitled to dismissal of 2269 First Ave's contractual indemnification, common-law indemnification, contribution and insurance procurement claims as against it. Notably, since BDM first raised the anti-subrogation argument in opposition to 2269 First Ave's motion, and in its reply papers, it is not entitled to summary judgment in its favor based on said argument (see Ditech Fin., LLC v Connors, 206 A.D.3d 694, 698 [2d Dept 2022]; see also Aguilar, 186 A.D.3d at 1302). Additionally, the contract between 2269 First Ave and BDM requires BDM to indemnify 2269 First Ave from any claim "caused in whole or in part by negligent act or omission of the Contractor, any subcontractor, or anyone employed by any of them . . ." In view of the factual issues regarding BDM's own negligence relating to the covering of the shaft openings, and the factual issues regarding Energy's negligence relating to the securing of the rod and plaintiff's failure to wear a hard hat (see Ginter, 121 A.D.3d at 845; Mercado, 104 A.D.3d at 578), BDM is not entitled to dismissal of the contractual indemnification claim against it. The issue with respect to BDM's own negligence also requires denial of the portion of its motion seeking summary judgment on its contractual indemnification claim against Energy (see Graziano, 175 A.D.3d at 1260; McDonnell, 165 A.D.3d at 1096-1097), and requires denial of the portion of its motion seeking dismissal of the common-law indemnification and contribution claims against it (see Yang, 207 A.D.3d at 796-797]). Finally, while the above noted proof regarding BDM's insurer concluding that 2269 First Ave was an additional insured under BDM's policy may warrant dismissal of 2269 First Ave's breach of contract claim for failing to procure insurance, BDM did not address the insurance procurement claim in moving for summary judgment, and thus is not entitled to dismissal of that cause of action (see Ditech Fin., LLC, 206 A.D.3d at 698).
Energy has demonstrated, prima facie, that the exclusive remedy provision of the Workers' Compensation Law bars the contribution and common-law indemnification claims against it, based on plaintiff's testimony and his bill of particulars, which show that he was Energy's employee, that he received Workers' Compensation, and that he did not sustain a grave injury (see Owens v Jea Bus Co., Inc., 161 A.D.3d 1188, 1190 [2d Dept 2018]; Maxwell v Rockland County Community Coll., 78 A.D.3d 793, 794 [2d Dept 2010]; Marshall v Arias, 12 A.D.3d 423, 424 [2d Dept 2004]; Workers' Compensation Law § 11). As neither BDM nor 2269 First Ave have submitted evidentiary proof demonstrating an issue of fact in this respect, Energy is entitled to summary judgment dismissing the contribution and common-law indemnification claims against it.
Energy, however, is not entitled to dismissal of BDM's and 2269 First Ave's contractual indemnification claims against it. Energy's contract with BDM contains a broad indemnification provision requiring it to indemnify 2269 First Ave and BDM for any claim arising out of Energy's work. Contrary to Energy's contentions, the accident is deemed to arise out of Energy's work, based on the fact that plaintiff, its employee, was injured at the work site, regardless of whether or not the accident is deemed to have been caused by any acts or omissions on the part of Energy (see O'Connor v Serge El. Co., 58 N.Y.2d 655, 657-658 [1982]; Madkins v 22 Little W. 12th St., LLC, 191 A.D.3d 434, 436 [1st Dept 2021]; Reisman v Bay Shore Union Free School Dist., 74 A.D.3d 772, 773-774 [2d Dept 2010]; Daily News, LP v OCS Sec., 280 A.D.2d 576, 577 [2d Dept 2001]; Tkack v City of New York, 278 A.D.2d 227, 229 [2d Dept 2000]). Further, although there are factual issues relating to 2269 First Ave's and BDM's negligence, Energy has failed to demonstrate that they were negligent as a matter of law.
The court notes that, although it is not clear from the language of the decision in Tkack, the briefs on appeal show that it was undisputed that plaintiff's employer had nothing to do with the material that was blown off the roof and struck plaintiff (see Defendant-Appellant-Respondent brief, 2000 WL 34488651, and Defendant-Respondent/Third-Party Plaintiff brief, 2000 WL 34488653).
With respect to 2269 First Ave's insurance procurement claim against Energy, 2269 First Ave has demonstrated that Energy's policy, which covers additional insureds for "'bodily injury' . . . caused, in whole or in part by [Energy's] acts or omissions" rather than the contractually required coverage for liability "arising out of 'your work' for that insured," does not comply with the insurance procurement requirements of the contract. Energy is thus not entitled to dismissal of the claim (see Roldan v New York Univ., 81 A.D.3d 625, 629 [2d Dept 2011]; Bachrow v Turner Constr. Corp., 46 A.D.3d 388, 388 [1st Dept 2007]; Clapper v County of Albany, 188 A.D.3d 774, 775-776 [3d Dept 1992]). However, 2269 First Ave is not entitled to summary judgment on the claim, because Energy's insurer has not made a final determination regarding the additional insured coverage in that it has agreed to provide a defense, and has only reserved its rights with respect to its indemnification obligation. Accordingly, the insurer may still concede that the accident arose out of Energy's acts or omissions, rendering it premature to determine that 2269 First Ave has suffered any damages as the result of Energy's failure to obtain a proper additional insured endorsement (see e.g. Gonzalez v DOLP 205 Props. II, LLC, 206 A.D.3d 468, 471-472 [1st Dept 2022]; Souare v Port Auth. of N.Y. & N.J., 125 A.D.3d 494, 495 [1st Dept 2015]; Bachrow, 46 A.D.3d at 388). At this juncture, the proper remedy regarding coverage under the policy would be a declaratory judgment action against the insurer (see Bachrow, 46 A.D.3d at 388; Garcia v Great Atl. & Pac. Tea Co., 231 A.D.2d 401, 402 [1st Dept 1996]).
Conclusions of Law
Energy's motion (mot. seq. no. 7) is granted only to the extent that 2269 First Ave's third-party claims and BDM's cross claims for contribution and common-law indemnification against it are dismissed. Energy's motion is otherwise denied.
BDM's motion (mot. seq. no. 8) is granted only to the extent that plaintiff's Labor Law § 241 (6) cause of action is dismissed to the extent that it is based on Industrial Code sections 12 NYCRR 23-1.5, 23-1.7 (a), 23-1.7 (b), 23-1.7 (f), 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.20, 23-1.32, 23-1.33 (a) (1), (2) & (3), 23-1.33 (f), 23-2.1 (b), 23-2.4 (a), 23-2.4 (b), 23-2.5 (a) (1) & (2) and 23-2.5 (b) (1) through (6). BDM's motion is otherwise denied.
The court notes that plaintiff previously withdrew his claim to the extent it was based on 12 NYCRR 23-1.30 by way of a stipulation of the parties dated May 7, 2021.
2269 First Ave's motion (mot. seq. no. 9) is granted to the extent that plaintiff's Labor Law § 241 (6) cause of action is dismissed insofar as it is based on Industrial Code sections 12 NYCRR 23-1.5, 23-1.7 (a), 23-1.7 (b), 23-1.7 (f), 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.20, 23-1.32, 23-1.33 (a) (1), (2) & (3), 23-1.33 (f), 23-2.1 (b), 23-2.4 (a), 23-2.4 (b), 23-2.5 (a) (1) & (2) and 23-2.5 (b) (1) through (6). 2269 First Ave's motion is otherwise denied.
Plaintiff Jeremy Ramjitsingh's motion (mot. seq. no. 10) is denied.
This constitutes the decision and order of the court.