Decided March 3, 2006.
Warner Scheurman, NY NY, Attorney for Plaintiff.
Wilson Elser Moskowitz Edelman Dicker, NY NY, Attorney for Defendant NY Crane.
Victor Bovis Lend Land Lease, NY NY, Attorney for Co-defendant.
The instant action resulted from a tragic accident, on November 10, 2004, when plaintiffs' decedent, Glenn S. Gonnert, a construction worker, employed by nonparty Di Fama Concrete, Inc., (Di Fama) fell to his death from a "Kodiak" crane used in the construction of a multistory building on West 53rd Street, between 8th and 9th Avenues, New York, New York. According to plaintiffs' verified complaint [exhibit A of motion]: defendant Victor at W. 53, LLC (Victor) was the owner of the premises; defendant Bovis Lend Lease LMB, Inc. (Bovis) was the general contractor for the project; Di Fama Concrete, Inc. was a subcontractor for the project; and defendant New York Crane Equipment Corp. (NY Crane) owned the crane from which plaintiffs' decedent met his demise.
Defendant NY Crane moves, pursuant to CPLR Rule 3211 (a) (7), for failure to state a cause of action, to dismiss plaintiffs' verified complaint against NY Crane, as well as the three cross-claims by co-defendants' Victor and Bovis against it for common-law and contractual indemnification, and breach of contract. Further, defendant NY Crane moves that this Court treat the motion to dismiss as one for summary judgment, pursuant to CPLR Rule 3211 (c).
With respect to all defendants, plaintiffs have six causes of action, of which five are for various alleged violations of Labor Law §§ 200, 240 (1), and 241 (6), and one for common-law negligence. The seventh cause of action is only against NY Crane for punitive damages, alleging that the accident, in paragraph 32 of the verified complaint, "was caused by the willful, malicious, wanton and reckless conduct of defendant New York Crane."
On September 14, 2004, NY Crane as lessor, and Di Fama as lessee, executed a rental agreement [exhibit B of motion], whereby NY Crane leased to Di Fama a Kodiak tower crane, for a minimum term of four months, at $25,000 per month, for use in "concrete erection" at the accident site. Under the terms of the agreement, Di Fama was responsible for the operation, use and maintenance of the crane at the construction site. In his March 4, 2005-affidavit, Salvatore Isola, the general manager of NY Crane, states, at paragraph 3, that not only did NY Crane merely lease the crane to Di Fama pursuant to the rental agreement, but NY Crane "did not provide or employ any operator or workers in connection with the lease for the operation of the crane and did not employ or provide any other workers at the project. Moreover, New York Crane had no supervision or control over any people or any work at the project concerning the operation of the crane and no other involvement in the project." Also, under the terms of the rental agreement, Di Fama was to provide NY Crane with property damage and public liability insurance.
One of the plaintiffs, Glenn D. Gonnert, son of the decedent, states in his affidavit in opposition, that as an experienced crane operator and mechanic, he visited the work site before and after the fatal accident. He opines that the accident was caused in part by defects in the crane, with oil leaking from the crane's swing motor, and the crane having "an open circular hole at the Rubeller rather than a steel platform with a hatch door. I believe that my Father fell through the open hole of the Rubeller on account of oil which had leaked from crane's swing motor [sic]."
This Court, pursuant to CPLR Rule 3211(c), will consider NY Crane's motion to dismiss as a summary judgment motion. For the reasons to follow, this Court will dismiss all of plaintiffs' causes of action against defendant NY Crane, except plaintiffs' second cause of action, for common-law negligence. Further, this Court will dismiss all three cross-claims of co-defendants' Victor and Bovis against defendant NY Crane. Triable issues of fact exist with respect to plaintiffs' cause of action against NY Crane for common-law negligence.
Summary judgment standard
The proponent of 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. See Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenburg v. Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).
CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the nonmoving party. Marine Midland Bank, N.A. v. Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2nd Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979).
In the instant case, defendant NY Crane's motion for summary judgment makes a prima facie showing of entitlement to judgment as a matter of law for all of plaintiffs' causes of action, except common-law negligence, as well as for dismissal of all three of the cross-claims by defendants Victor and Bovis against defendant NY Crane.
Labor Law § 200 codifies the common-law duty of employers and their agents to protect the healthy and safety of their employees at a job site. Labor Law § 240 (1) mandates that owners, general contractors, and agents, with exceptions not relevant to the instant case, are responsible to their workers to prevent gravity related accidents. Labor Law § 241 (6) provides that owners and general contractors, or their agents, must comply with applicable work site safety regulations at construction sites.
In Russin v. Louis N. Picciano Son, 54 NY2d 311 (1981), the Court of Appeals made it clear that a party who doesn't have the authority to direct, supervise and control the work at a construction site cannot be liable under Labor Law §§ 200, 240 (1), and 241 (6). In the instant action, NY Crane rented the crane to the subcontractor Di Fama. NY Crane did no more than lease equipment to Di Fama.
The Court, in Wysocki v. Balalis, 290 AD2d 504 (2nd Dept 2002) dismissed Labor Law §§ 200, 240 (1), and 241 (6) claims made by an employee of a general contractor against the supplier of a scaffold. The Court, at 505, held that the "supplier of the scaffold, did not exercise any supervision, direction, or control over the plaintiff's work [citations omitted]." The Appellate Division, First Department, in Noah v. 270 Lafayette Associates, L.P., 233 AD2d 108 (1996), a case involving a worker falling from a plywood platform, instructed, at 109, that the "seller and/or supplier of the allegedly defective scaffold . . . cannot be liable to plaintiff under the Labor Law, and accordingly the IAS Court should not have granted summary judgment in itsfavor dismissing that portion of the complaint." In Diamond v. Reilly Homes Const. Corp., 245 AD2d 763 (3rd Dept 1997), workers were injured while assembling a modular house when a roof section fell from the hoist of a crane. Defendant Royal Crane provided the crane and an operator. In the instant case, NY Crane only provided the crane. The Diamond Court held, at 765, that:
Summary judgment in favor of Royal Crane was properly granted on the Labor Law § 240 (1) claim since Royal Crane was neither the owner, general contractor or agent of either. Royal Crane exercised no supervision or control over any of the work being performed; its involvement was limited to the provision of a crane and operator who was directed in his movements by plaintiffs and employees of New Dimensions [plaintiff Diamond's construction company] ( see Russin v. Picciano Son, 54 NY2d 311).
Recently, in Damiani v. Federated Department Stores, Inc., 23 AD3d 329 (2nd Dept 2005), the Court observed, at 331-332, that:
A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured ( see Labor Law §§ 200, 241 ; Russin v. Picciano Son, 54 NY2d 311, 318). To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition ( id.).
Without an employer-employee relationship between the crane operator and NY Crane, there can be no liability for negligence in the use and operation of the crane at the project site for negligence pursuant to the Labor Law. In the instant case, Di Fama was responsible for the crane operator, not NY Crane. In Zaffuto v. New Life Community Church, 161 AD2d 640 (2nd Dept 1990), the Court held that:
The relationship between the lessor and lessee of heavy machinery is not that or principal and agent or master and servant. Rather, the lessee is an independent contractor. Absent evidence of an employer-employee relationship between the crane operator and the lessor, the lessor is not liable for injury to a third person resulting from the negligent acts of the lessee or the lessee's employees ( see, Szarewicz v. Alboro Crane Rental Corp., 58 AD 770 [1st Dept 1975], affd 40 NY2d 1076  . . . [other citations omitted]).
In Szarewicz, a steelworker claimed injury after being knocked off a steel beam, allegedly caused by a crane operator's negligence. The crane was leased by defendant Alboro Crane to a lessee, Harrod. The record demonstrated that the crane operator was not an employee of Alboro Crane, but an employee of Harrod. As in the instant case, the lessor, Alboro Crane, only supplied the crane. The Szarewicz Court held, at 770, that plaintiff could not predicate liability "either on the rental agreement between Alboro and Harrod or on the theory that Alboro controlled the operator. The rental agreement provided only for the leasing of the equipment itself and not for operating personnel."
Plaintiffs, in their opposition papers, rely upon two cases which held that cranes are "structures" within the meaning of Labor Law § 240 (1). These cases, Cornacchione v. Clark Concrete Co., Inc., 278 AD2d 800 (4th Dept 2000) and Cun-En Lin v. Holy Family Monuments, 18 AD3d 800 (2nd Dept 2005) are irrelevant to the instant case. In both cases the defendant crane owners, unlike NY Crane, were "owners" within the meaning of the scaffold law. The crane owners contracted to have work performed on their cranes and the plaintiff workers suffered elevation related injuries. In Copertino v. Ward, 100 AD2d 565, 566 (2nd Dept 1984), the Court held that an "owner" under the Labor Law "has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit." Plaintiffs do not refute NY Crane's contention that it did not supply the crane operator and that NY Crane did not have work performed at the West 53rd Street site for its benefit. Thus, NY Crane is not liable to plaintiffs as an "owner" pursuant to the Labor Law causes of action. See Billman v. CLF Management, 19 AD3d 346 (2nd Dept 2005); Berrios v. TEG Management Corp., 7 AD3d 355 (2nd Dept 2004); Lacey v. Long Island Lighting Co., 293 AD2d 718 (2nd Dept 2002).
In opposing NY Crane's summary judgment motion, the burden shifts to plaintiffs to demonstrate the existence of triable issues of fact. See Alvarez v. Prospect Hospital, supra; Winegrad v. New York University Medical Center, supra. Plaintiffs have failed to do so with respect to the causes of action for Labor Law violations. However, with respect to the common-law negligence cause of action, plaintiffs' presented the affidavit of plaintiff Glenn D. Gonnert regarding the alleged oil leak in the crane's swing motor. In a somewhat similar case, Beltrone v. City of New York, 299 AD2d 306 (2nd Dept 2002), NY Crane was one of the co-defendants. The injured plaintiff, the employee of a nonparty contractor, fell off the deck of a crane at New York City's Fresh Kills Landfill. NY Crane leased the crane to plaintiff's employer. Plaintiff alleged, in a deposition, that NY Crane visited the site to fix the oil leak. In the instant case, decedent's son, in his affidavit, discussed the oil leak he allegedly observed in the swing motor. The Beltrone Court, at 307 held:
With respect to the plaintiffs' cause of action to recover damages for common-law negligence asserted against NY Crane, the defendants made a prima facie showing that NY Crane neither created nor had actual or constructive notice of the allegedly defective condition ( see Zuckerman v. City of New York, 49 NY2d 557). However, the plaintiffs established the existence of triable issues of fact through the deposition testimony of the injured plaintiff.
In the instant action, there are triable issues of fact as to whether defendant NY Crane had actual or constructive notice of providing Di Fama with a defective crane that leaked oil, which could be the proximate cause of decedent's accident under a common-law negligence theory.
With respect to plaintiff's cause of action for punitive damages, the verified complaint fails to contain allegations sufficient to support a recovery of punitive damages. There must be allegations of such a high degree of moral turpitude and wanton dishonesty as to imply criminal indifference to civil obligations, generally aimed at the public as a whole. Assuming that NY Crane negligently leased a defective crane, this is not an allegation of conduct of such a high level of moral turpitude addressed at the public that it supports a punitive damages claim. In Walker v. Sheldon, 10 NY2d 401 (1961), the Court, at 404, observed that; Punitive or exemplary damages have been allowed in cases where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but to deter him, as well as others who might otherwise be so prompted, from indulging in similar conduct in the future.
In Vaveris v. Hermitage Ins. Co., 24 AD3d 537 (2nd Dept 2005), the Court observed that:
Punitive damages are only available in limited circumstances where it is necessary to deter conduct which may be characterized as "a fraud evincing a `high degree of moral turpitude'" or "`such wanton dishonesty as to imply a criminal indifference to civil obligations'" directed "`at the public generally'" (Rocanova v. Equitable Life Assur. Soc. of U.S., 83 NY2d 603, 613 , quoting Walker v. Sheldon, 10 NY2d 401, 404-405; see New York Univ. v. Continental Ins. Co., 87 NY2d 308 ; Logan v. Empire Blue Cross Blue Shield, 275 AD2d 187 ).
The lack of evidence of gross conduct involving high moral culpability by NY Crane in the instant case precludes the punitive damages cause of action. Outside Connection v. DiGennaro, 18 AD3d 634 (2nd Dept 2005); Heller v. Provenzano, 303 AD2d 20 (1st Dept 2003); Zimmerman v. Tarshis, 289 AD2d 230 (2nd Dept 2001); Morrell v. Gorenkoff, 278 AD2d 210 (2nd Dept 2000).
The three cross-claims of co-defendants Victor and Bovis [exhibit B of NY Crane's reply affirmation — verified answer of Victor and Bovis] are totally inaccurate and cry out for dismissal. The first cross-claim, for common-law and/or contractual indemnification, fails for lack of any privity of contract between NY Crane and the other defendants. The only contract presented by any of the parties is the crane rental agreement between Di Fama and NY Crane. The second cross-claim, for breach of contract, claims that NY Crane agreed to perform work and render services at the construction site. This is not in the rental agreement of Di Fama and NY Crane. Further, Victor and Bovis, allege in paragraph 37 of their verified answer, that NY Crane "agreed to indemnify and hold harmless the answering defendants [Victor and Bovis] from claims such as those asserted by plaintiffs." This is totally inaccurate. Again, there is no contractual relationship between NY Crane and co-defendants, Victor and Bovis. Lastly, in their third cross-claim, Bovis and Victor, allege that NY Crane agreed to procure personal injury and property damage insurance of $5,000,000 per occurrence and failed to do so. This is impossible in the absence of any contract between NY Crane and co-defendants Victor and Bovis. Therefore, the three cross-claims of Victor and Bovis against NY Crane must be dismissed.
Accordingly, it is
ORDERED, that the branches of the motion of defendant New York Crane Equipment Corp., pursuant to CPLR Rule 3211 (a) (7), to dismiss plaintiffs' verified complaint against defendant New York Crane Equipment Corp. for failure to state a cause of action is granted to the extent of dismissing the first, third, fourth, fifth, sixth and seventh causes of action in plaintiffs' verified complaint against defendant New York Crane Equipment Corp., and it is further
ORDERED, that the branch of the motion of defendant New York Crane Equipment Corp., pursuant to CPLR Rule 3211 (a) (7), to dismiss plaintiffs' verified complaint against defendant New York Crane Equipment Corp. for failure to state a cause of action is denied for the second cause of action in plaintiffs' verified complaint, and it is further
ORDERED, that the branch of the motion of defendant New York Crane Equipment Corp., pursuant to CPLR Rule 3211 (a) (7), to dismiss all three of the cross-claims of co-defendants Victor at W. 53, LLC's and Bovis Lend Lease LMB, Inc. against defendant New York Crane Equipment, Inc. for common-law and contractual indemnification, and breach of contract is granted.
This constitutes the Decision and Order of the Court.