Opinion
19351/05.
Decided February 4, 2008.
Upon the foregoing papers, it is ordered that the motion by defendants The Parr Organization Incorporated and Touro College for an order pursuant to 22 NYCRR 202.21(e) striking plaintiff's Note of Issue and striking this matter from the trial calendar; an order pursuant to CPLR 3212(a) extending defendants' time to move for summary judgment; and, an order pursuant to CPLR 3124 compelling plaintiff to provide outstanding discovery is denied as moot.
The motion by plaintiff Andrew Vezzuto for an order pursuant to CPLR 3212 and Labor Law § 240(1) granting him partial summary judgment against defendants The Parr Organization and Touro College on the issue of liability is granted as provided herein.
The motion by defendant third-party plaintiff The Parr Organization Incorporated and Touro College for an order pursuant to CPLR 3212 granting them summary judgment against third-party defendant Island Steel Detailing Corp. is granted to the extent provided herein.
The cross-motion by third-party defendant Island Steel Detailing Corp. for an order pursuant to CPLR 3212 granting it summary judgment dismissing the third-party complaint against it is denied.
The plaintiff in this action seeks to recover damages for personal injuries he sustained on September 29, 2005 while working at defendant Touro College as a union steel worker. While installing a turnbuckle on the frame of the open steel skeletal structure, the plaintiff fell to the ground below sustaining injuries to his neck, left foot and left ankle. In his complaint, the plaintiff has advanced claims pursuant to Labor Law as well as common law negligence against The Parr Organization and Touro College. The Parr Organization commenced the third-party action against Island Steel Detailing Corp. seeking common law and contractual indemnification.
The defendant The Parr Organization was retained by the defendant Touro College as the project's General Contractor to build its new law school, the Jacob D. Fuchsberg College of Law. The Parr Organization's contract with Touro College requires The Parr Organization to defend, indemnify and hold Touro College and its representatives harmless to the fullest extent permitted by law from and against "claims, damages, losses and expenses, including attorney's 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, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a subcontractor, a Sub-subcontractor, and 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." The Parr Organization subcontracted with the third-party defendant Island Steel Detailing, Inc., via a Bid Quote and subsequently a contract for the fabrication and erection of the structural steel frame of the building. As was contemplated by the Bid Quote, Island Steel Detailing subcontracted with the plaintiff's employer Vulcan Ironworks to erect the steel structure.
Presently, the plaintiff seeks partial summary judgment against The Parr Organization and Touro College with respect to liability on his Labor Law § 240(1) claim. The Parr Organization and Touro seek indemnification from the third-party defendant Island Steel Detailing Corp. And, Island Steel Detailing Corp. seeks dismissal of the third-party complaint.
The pertinent facts are as follows:
The plaintiff testified at his examination-before-trial that he was employed by Vulcan Ironworks which, at the time of his accident, was erecting the steel frame of the new law school at Touro College. He testified that on the day of his accident, he was installing turnbuckles on the open steel frame of the third floor as his supervisor Vulcan Ironworks' foreman Jimmy "Lodi" Louidice had instructed him to do. He testified that he was not provided with a safety harness, tie line, static line, scaffolding or a platform and that there was no place for him to tie off to anyway. In fact, he testified that he was never instructed or told to use any type of safety equipment at all while working at Touro College. He testified that just before the accident, he was standing on a beam of the open steel structure near a column and what would be the elevator shaft, approximately eight feet away from the edge of the west side of the building. He testified that he unscrewed the turnbuckle, took it apart and then tried to put it into the nut on the nearby column and as he tried to put the turnbuckle back together, he fell backwards down to the deck below. He was standing on a beam slightly higher than the third floor level and fell down to the second level.
There is no dispute that neither The Parr Organization, Touro College nor Island Steel Detailing played any part in controlling or supervising the work being done by Vulcan Ironworks.
Plaintiff's co-worker Troy Sammis has also attested that no fall protection was provided to him, the plaintiff or any of their co-workers at the Touro College work site and that there was no where to tie off to, anyway.
James Louidice, the foreman at the job site for Vulcan Ironworks, testified at his examination-before-trial that third-party defendant Island Steel Detailing Corp. was the steel fabricator for the project and that Vulcan Ironworks was responsible for erecting the steel frame. He acknowledged that he was responsible on a daily basis for assigning the ironworkers their jobs. He could not recall ever discussing safety issues with the plaintiff. He recalled telling the plaintiff on the day of his accident to install safety cable which entailed installing nuts and then turnbuckles. He admitted that he did not instruct the plaintiff regarding how to do these things nor did he discuss using safety equipment. He acknowledged that the plaintiff was not given safety equipment, however, he testified that it was in the truck. Another employee testified that safety equipment was in trade gang boxes or The Parr Organization's trailer.
The Parr Organization accepted a Bid by Island Steel Detailing Corp. on or about March 21, 2005, for the fabrication and installation of the steel structure which indicated that the labor would be provided by Vulcan. Island Steel Detailing's insurance declaratory page which was sent to The Parr Organization on April 4, 2005 and appears to have been effective on the date of plaintiff's accident listed The Parr Organization and Touro College as "additional insureds as respects to general liability on a primary basis." When Island Steel Detailing faxed back the Bid Agreement to The Parr Organization on May 3, 2005, Jeanne Foster, an officer of Island Steel Detailing wrote: "This is a contract" on it. The Bid stated: "Additional Insured Status is Valid Only With a Fully Executed Written Contract! You will need to issue a contract to us before we start any work in order for you and this project to be insured!" Nevertheless, Jeanne Foster testified at her examination-before-trial that it was Island Steel Detailing's intent from the start to hold The Parr Organization harmless for the work done.
Island Steel Detailing's written contract which was prepared by The Parr Organization was not executed by Island Steel Detailing until February 15, 2006, after the work had begun, payments had been made and plaintiff's accident occurred. That contract, however, provides: "This agreement is being entered into by all indicated parties for any and all work done for, with, or on behalf of The Parr Organization Incorporated for the period starting with April 2005 and running until completion of project." That contract further provides that it "pertains to all work performed during [the] indicated period of time whether via written or verbal arrangements." It obligated Island Steel Detailing Corp. to procure insurance on its own behalf and to furnish insurance to Touro College and The Parr Organization. It provided that "the term Subcontractor' . . . shall mean and include subcontractors of every tier,'" and that "should the subcontractor engage a subcontractor, the same conditions will apply under this contract to each subcontractor." It also obligated a retained subcontractor to maintain limits of liability of not less than one million dollars per occurrence and in the aggregate, with said limits applicable on a per project basis, or such greater limits as may be required by the retaining subcontractor. The contract required Island Steel Detailing to indemnify and hold The Parr Organization harmless to the fullest extent permitted by law "from and against any and all claims, suits, liens, judgments, damages, losses and expenses, including legal fees and all court costs and liability (including statutory liability) arising in whole or in part and in any manner from injury and/or death of person or damage to or loss of any property resulting from the acts, omissions, breach or default of Subcontractor, its officers, directors, agents, employees and subcontractors, in connection with the performance of any work by or for Subcontractor pursuant to any contract Purchase Order and/or related Proceed Order, except these claims, suits, liens, judgments, damages, losses and expenses caused by the negligence of The Parr Organization Incorporated (emphasis added)." The contract further provided that the "Subcontractor will defend and bear all costs of defending any actions or proceedings brought against The Parr Organization Incorporated and/or their officers, directors, agents and employees, arising in whole or in part out of any such acts, omissions, breach or default."
"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact."( Sheppard-Mobley v King , 10 AD3d 70 , 74 (2nd Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985)). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." ( Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra.) Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact ( Alvarez v Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference ( See, Demishick v Community Housing Management Corp., 34 AD3d 518 (2nd Dept. 2006), citing Secof v Greens Condominium, 158 AD2d 591 (2nd Dept. 1990)).
Labor Law § 240(1) provides:
"all contractors and owners and their agents . . . in the erection, demolition, repairing, altering . . . 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 . . . braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
"To recover under Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident. . . ." ( Marin v Levin Properties, LP , 28 AD3d 525 (2nd Dept. 2006) citing Blake v Neighborhood Hous. Servs. of NY City, Inc. , 1 NY3d 280, 287 (2003); Gardner v New York City Tr. Auth. 282 AD2d 430 (2nd Dept. 2001)). While a defendant cannot be found liable if the plaintiff's action were the sole proximate cause of his accident ( Morin v Levin Properties, LP, supra, at p. 525, citing Weininger v Hagedorn Co., 91 NY2d 958, 960; Morin v Machnick Bldrs, Ltd. . , 4 AD3d 668, 669 [3rd Dept. 2004]), "the failure to provide any protective devices for workers at the work site establishes an owner [and/] or contractor's liability as a matter of law" ( Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521 citing Long v Forest-Fehlhaber, 55 NY2d 154)." [I]t is not enough to defeat liability to show "the mere presence of alleged safety devices somewhere on the job site . . ., nor the mere fact that generalized safety instructions were given at some point in the past."'" Marin v Levin Properties, LP, supra, at p. 525-526 quoting Palacios v Lake Carmel Fire Dept., Inc. 15 AD3d 461, 463 (2nd Dept. 2005) quoting Davis v Board of Trustees of Hicksville Pub. Lib. of Hicksville Union Free School Dist., 240 AD2d 461, 463 (2nd Dept. 1997); see, Zimmer v Chemung County Performing Arts, supra.).
The plaintiff has made a prima facie showing of entitlement to summary judgment as a matter of law on his claim pursuant to Labor Law § 240(1) by establishing that he fell from an elevated work site and that he was not provided with any safety equipment. The burden accordingly shifts to the defendants The Parr Organization and Touro College to establish the existence of a material issue of fact.
Defendants maintain that safety equipment was at the work site in a trailer or work wagons. That, however, does not suffice ( Zimmer v Chemung County Performing Arts, supra, at p. 524; Marin v Levin Properties, LP, supra; see also, Palacios v Lake Carmel Fire Dept., Inc., supra; Davis v Board of Trustees of Hicksville Pub. Lib. of Hicksville Union Free School Dist., supra.) Assuming, arguendo, that the presence of safety equipment at the work site sufficed, it is uncontroverted that there were no static lines to connect a harness and/or lanyard to, thereby establishing defendants' liability in any event ( see, DiMuro v Town of Babylon, 210 AD2d 373 (2nd Dept. 1994); Desrosiers v Barry, Bette Led Duke, Inc., 189 AD2d 947 (3rd Dept. 1996); compare, Cahill v Triborough Bridge and Tunnel Authority , 4 NY3d 35 (2004)).
Defendants also argue that the plaintiff's Labor Law § 240(1) claim fails because the regulations of the Occupational Safety and Health Act ("OSHA") of 1970's do not require that protection be provided to workers at elevations below 18 feet and plaintiff fell only 14 feet. Assuming, arguendo, that the plaintiff fell 14 feet and not the 18-20 feet approximated by his co-workers, standing alone, a defendant's compliance with OSHA standards, does not defeat a plaintiff's Labor Law claim. Business for a Better New York v Angello, 2007 WL 2892615, p. 6 (WDNY 2007) (Labor Law §§ 240, 241 are not pre-empted by OSHA), citing People v Pymm, 76 NY2d 511, 523-524 (1990), cert den. 489 US 1085 (1991) ; Irwin v St. Joseph's Intercommunity Hospital, 236 AD2d 123, 129 (4th Dept. 1977); see also, Zimmer v Chemung County Performing Arts, Inc., supra; Sakellaridis v Polar Air Cargo, Inc., 104 F.Supp.2d 160 (EDNY 2000)).
Defendants' reliance on the affidavit of Angel Menendez wherein he states that the plaintiff's improper installation of the turnbuckle is what caused him to fall also fails. Assuming, arguendo, that the plaintiff was negligent and that his negligence contributed to his fall, there was still a blatant violation of Labor Law § 240(1) because no fall protection system was in place. In any event, comparative negligence is not a defense to a claim pursuant to Labor Law § 240(1)( Cahill v Triborough Bridge Tunnel Authority, supra; Blake v Neighborhood Housing, supra; Roscovich v Consolidated Edison, 78 NY2d 509 (1991); Bland v Manocherian, 66 NY2d 452 (1985); Zimmer v Chemung County Performing Arts, supra.)
The plaintiff's motion is granted and he is awarded summary judgment with respect to liability against the defendants General Contractor The Parr Organization and the defendant property owner Touro College.
Turning next to The Parr Organization and Touro College's motion for summary judgment against Island Steel Detailing Corp.," "the right to contractual indemnification depends upon the specific language of the contract."'" ( Lesisz v Salvation Army , 40 AD3d 1050 (2nd Dept. 2007), quoting Kader v City of NY Hous. Prserv. Dev. , 16 AD3d 461, 463 (2nd Dept. 2005), quoting Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939 (4th Dept. 1995). And, "[i]n the absence of fraud, duress or some other wrongful act by a part to a contract, a signer of an agreement is deemed to be conclusively bound by its terms whether or not he or she read it".( Maines Paper and Food Services, Inc. v Abdel, 256 AD2d 760, 761 (1988), citing Gilman v Chase Manhattan Bank, 73 NY2d 1, 11 (1988); see also, Pimpinello v Swift Co., 253 NY 159 (1930); Metzger v Aetna Ins. Co., 227 NY 411 (1920)).
Island Steel Detailing's agreement with The Parr Organization is clearly retroactive to when the work begun and it requires Island Steel Detailing as the Subcontractor to indemnify The Parr Organization for not only its own acts and omissions, but its subcontractors, i.e., Ironworks', as well. The defendant The Parr Organization's motion for summary judgment requiring Island Steel Detailing to indemnify it for any and all costs in this action is therefore granted.
As for Touro College, it is not a party to the third-party action and accordingly has not properly advanced a claim for contractual, common law or implied indemnification against Island Steel Detailing. In any event, assuming, arguendo, that Touro College had advanced such claims against Island Steel Detailing, Island Steel Detailing's contract only required it to defend and indemnify The Parr Organization: It did not require Island Steel Detailing to defend and/or indemnify Touro College. Assuming, arguendo, that The Parr Organization's agreement with Island Steel Detailing Corp. incorporated the provisions of The Parr Organization's contract with Touro College, "[u]nder New York law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character, and manner of work to be performed by the subcontractor."( Bussanich v 310 East 55th Street Tenants, 282 AD2d 243, 244 (1st Dept. 2001); see also, Goncalves v 515 Park Ave. Condominium , 39 AD3d 262, 263 (1st Dept. 2007)). While it is true that "[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., Inc., 70 NY2d 774, 777 quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153; Hogeland v Sibley, Lindsay Carr Co., 42 NY2d 153, 159; Rodriguez v Baker, 91 AD2d 143, 146 [1st Dept. 1983], affd for reasons stated below 61 NY2d 804), there is no evidence to support the conclusion that the parties intended that Island Steel Detailing be obligated to indemnify Touro College ( see, Flores v Lower East Side Service Center, Inc., 4 NY3d 363; Brown Bros. Elec. Contractors, Inc. v Beam Const. Corp., 41 NY2d 397). And, an obligation to insure does not give rise to or infer an obligation to indemnify ( Kinney v G. W. Lisk Co., 76 NY2d 215, 218 (1990); Goncalves v 515 Park Ave. Condominium, supra, citing Hooper Assoc. v AGS Computers, 74 NY2d 487 (1989)).
Nor is Touro entitled to recover from Island Steel Detailing Corp. under the doctrine of common law or implied indemnification. "[I]mplied indemnification . . . recognize[s] that (a) person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity.'"( McDermott v City of New York, 50 NY2d 211, 216-217, rearg den. 50 NY2d 1059 (1980), quoting Restatement, Restitution, § 76. "To prevent unjust enrichment, courts have assumed the duty of placing the obligation where in equity it belongs." McDermott v City of New York, supra, citing Dunn v Uvalde Asphalt Paving Co., 175 NY 214 (1903). "Thus, the rule developed that (w)here payment by one person is compelled, which another should have made * * * a contract to reimburse or indemnify is implied by law.'" McDermott v City of New York, supra, at p. 217 quoting Brown v Rosenbaum, 287 NY 510 (1942). "Nonetheless, an indemnity cause of action can be sustained only if the third-party plaintiff and the third-party defendant have breached a duty to plaintiff and also if some duty to indemnify exists between them.'"( Rosado v Proctor Schwartz, Inc., 66 NY2d 21, 24 (1985), quoting Garrett v Holiday Inns, 86 AD2d 469, 471 (4th Dept. 1982), mod on other grounds 58 NY2d 253 (1983). Other than subcontracting with Vulcan Ironworks, Island Steel Detailing Corp. played no part in the plaintiff's accident and accordingly is not the party responsible who should ultimately compensate him for his injuries.
Touro College's motion for summary judgment against Island Steel Detailing Corp. is denied.
In view of the foregoing, Island Steel Detailing Corp.'s motion for summary judgment dismissing the third-party complaint is denied.