June 10, 2011.
Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on October 24, 2003, at 97-77 Queens Boulevard, Rego Park, New York, in a first floor room designated as "PET/CT Control Number 107" (Room 107). Plaintiff, an independent contractor, had been hired by MiJu Eastern Carpet, Inc. (MiJu), to install tile and cove molding in a portion of the first floor of the premises as part of a larger renovation project.
Federal owns the building known as 97-77 Queens Boulevard and was the primary lessor of a portion thereof, viz the entire third floor and a portion of the first floor, pursuant to a lease agreement with Mt. Sinai, dated May 1, 1997. Mt. Sinai, with the express written consent of Federal, subleased the third floor and a portion of the first floor to LIM, pursuant to a sublease agreement, dated September 18, 2002. Indeed, Mt. Sinai subleased the entire space granted to it under its lease with Federal to LIM.
On or about May 2, 2003, LIM entered into a contract with HHC for the construction of a diagnostic testing facility upon the premises. Pursuant to the terms of the contract, HHC was to assume the role of general contractor on the project, and Rusk was hired as LIM's "representative" on the project. HHC hired Radiation to fabricate, deliver and install the lead doors at issue. No formal contract was entered into between HHC and RSS; rather RSS supplied various proposals to HHC for installation of shielding materials for use in the MRI/RF and PET/CT rooms. After being hired to both supply the shielding materials and to install them, RSS hired subcontractors to both fabricate the shielding materials and to install them at the job site.
The motions and cross motions noted above are opposed by the respective parties.
Plaintiff had finished the tiling three or four days earlier and had returned to the site to install the molding when the accident occurred. Plaintiff testified that when he arrived on site, he saw a worker on a ladder apparently working on lighting on the first floor designated as "PET/CT Scan 106". Another worker in the hallway was cutting the door frame of a room known as "Patient Prep 110". Plaintiff had worked in the hallway for 1 to 1.5 hours before beginning work in Room 107. There was no one else working in room 107 when plaintiff entered. The walls and ceiling of the room were finished and light fixtures had been installed, but (allegedly) there was "garbage", i.e. construction debris, strewn about the floor in the room. None of the garbage was the result of plaintiff's earlier tile work. The room also contained two metal doors lying together "edgewise" on the floor horizontally and propped against a wall at a very slight angle.
Plaintiff further testified that as he bent down (squatted) in front of the two uninstalled metal doors propped against the wall, in order to look behind them to determine whether he could install molding behind them without moving them, he touched the doors and as he did so they began to fall forward. Plaintiff stood up rapidly, took a step backwards and encountered a portion of debris which caused him to slip/trip and fall. Plaintiff landed on his buttocks, attempted to hold up the heavy doors with both hands but was unable to do so and so the doors fell on plaintiff's outstretched legs. Plaintiff alleges that he "tripped" or "slipped" on the debris in back of him when the doors began to fall and thus the debris was the direct cause of his fall.
Motion by Federal
Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees a safe work place ( see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Comes v New York State Elec. Gas Corp., 82 NY2d 876; Molyneaux v City of New York , 28 AD3d 438 ; Paladino v Society of NY Hosp., 307 AD2d 343). If the allegedly dangerous condition arises from the contractor's methods and the owner or general contractor exercises no supervisory control over the operation, liability does not attach under the common law or under Labor Law § 200 (see Comes v New York State Elec. and Gas Corp., supra; Lombardi v Stout, 80 NY2d 290; Mas v Kohen, 283 AD2d 616; Cuartas v Kourkoumelis, 265 AD2d 293).
Here, Federated established their prima facie entitlement to summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence by demonstrating that they neither had the authority to supervise or control the activity bringing about the plaintiff's injury, nor had actual or constructive notice of the allegedly dangerous condition ( see Russin v Picciano Son, 54 NY2d 311; Rizzuto v L.A. Wenger Contr. Co., supra; Comes v New York State Elec. Gas Corp., supra; Paladino v Society of NY Hosp., supra). In opposition, plaintiff failed to raise a triable issue of fact. Accordingly, the Court grants summary judgment dismissing the plaintiff's causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against Federated.
"Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers, and a violation of an explicit and concrete provision of the Industrial Code by a participant in the construction project constitutes some evidence of negligence for which the owner or general contractor may be held vicariously liable" ( Edwards v C D Unlimited, 295 AD2d 310, 311; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350). "An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241(6), including contributory and comparative negligence" ( Rizzuto v L.A. Wenger Contr. Co., supra at 350). Here, issues of fact exist as to the injured plaintiff's comparative negligence ( see Rizzuto v Wenger Contr. Co., supra; Long v Forest-Fehlhaber, 55 NY2d 154; Amirr v Calcagno Constr. Co., 257 AD2d 585).
Moreover, contrary to Federal's contention, an out-of-possession owner may be liable under Labor Law § 241(6), provided there is, as here, some connection or nexus between the owner and plaintiff ( see Morton v State, 15 NY3d 50). Here, Federal leased the premises to Mt. Sinai and, thereafter, Mt. Sinai subleased the premises to LIM. Federal also gave written consent for the sublease between Mt. Sinai and LIM, that included approval for LIM's plans for alterations to create a radiology/diagnostic imaging facility. Accordingly, the Court denies the branch of the motion which is for summary judgment in favor of Federal on the issue of liability pursuant to Labor Law § 241 (6).
Pursuant to the terms of the written lease agreement between Federal and Mt. Sinai, and the sublease between Mt. Sinai and LIM, Federal is entitled to indemnification from Mt. Sinai and LIM. Contrary to defendants' assertion, the indemnification agreement at issue here is not void and unenforceable. Although an indemnification agreement that purports to indemnify a party for its own negligence is void under General Obligations Law § 5-322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification "to the fullest extent permitted by law," as the subject agreement does here ( see Cabrera v Board of Educ. of City of NY , 33 AD3d 641, 643; Bink v F.C. Queens Place Assoc., LLC , 27 AD3d 408, 409). Moreover, an indemnification clause is enforceable where the party to be indemnified is found to be free of any negligence ( see Brown v Two Exch. Plaza Partners, 76 NY2d 172; Lesisz v Salvation Army , 40 AD3d 1050 ). In support of its claim for contractual indemnification as a matter of law, Federal established, prima facie, that it did not have actual or constructive notice of the existence of the condition which allegedly caused the plaintiff to trip ( see Gordon v American Museum of Natural History, 67 NY2d 836; Harvey v Morse Diesel Intl., 299 AD2d 451; Canning v Barneys NY, 289 AD2d 32). In opposition, Mt. Sinai and LIM failed to raise a triable issue of fact. In the absence of any showing of negligence, General Obligations Law § 5-322.1 does not bar enforcement of contractual indemnification for vicarious liability imposed under Labor Law § 241(6) ( see Lesisz v Salvation Army, supra; Biance v Columbia Washington Ventures, LLC , 12 AD3d 926 ; Fresco v 157 E. 72nd St. Condominium , 2 AD3d 326 ). Further, the contractual indemnification provision at issue requires Mt. Sinai to indemnify Federal for any "claims, suits, actions, damages, losses . . . arising out of or resulting from performance of the [subcontracted] Work". As the record demonstrates that the plaintiff's injuries arose out of the performance of the subcontracted work, the Court grants that branch of Federal's motion which is for summary judgment on the cross claim against Mt. Sinai and LIM for contractual indemnification ( see Lesisz v Salvation Army, supra; Argueta v Pomona Panorama Estates, Ltd. , 39 AD3d 785 ; Tkach v City of New York, 278 AD2d 227; Pope v Supreme — KRW Constr. Corp., 261 AD2d 523).
Motion by RSS
The motion by RSS to dismiss the complaint (insofar as asserted against it) and cross claims is granted.
To hold a subcontractor or statutory agent of the owner or general contractor absolutely liable for violations of Labor Law §§ 240 and 241, there must be a showing that the subcontractor had the authority to supervise and control the work giving rise to these duties ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Russin v Picciano Son, 54 NY2d 311). The determinative factor on the issue of control is not whether a subcontractor furnishes equipment but whether it has control of the work being done and the authority to insist that proper safety practices be followed ( see Serpe v Eyris Prods., 243 AD2d 375; Iveson v Sweet Assocs., 203 AD2d 741). Similarly, liability against a subcontractor based upon a claimed violation of Labor Law § 200 and common-law negligence requires a showing that authority was conferred on the subcontractor to supervise and control the activity which produced the injury ( see Rizzuto v Wenger Contr. Co., 91 NY2d 343; Comes v New York State Elec. Gas Corp., 82 NY2d 876; Russin v Picciano Son, supra; Goettelman v Indeck Energy Servs., 262 AD2d 958; Rice v City of Cortland, 262 AD2d 770; Mocarska v 200 Madison Assocs., 262 AD2d 163).
Here, while RSS was responsible (either directly or through its subcontractors) for delivery and installation of the doors at issue, John Rusk (of Rusk) clearly testified that when the doors were delivered to the job site, they were immediately hung in place. Mr. Rusk further testified that the accident involving plaintiff occurred at the very end of the project and after the time when the doors in question were installed by the contractor. Mr. Rusk testified that "when the accident happened, it wasn't a door to be installed, it was a door that had been installed and was de-installed during the installation of the floor covering"; the doors were taken off of their frames to facilitate the installation of the flooring materials.
Duong Uyu of HHC testified that Miju Carpet was responsible for preparing the area where the floor tiles and molding were to be installed. In this regard, Uyu further testified that Miju Carpet was the entity that was responsible for moving the doors so that the molding could be installed.
Accordingly, the motion by RSS to dismiss the complaint insofar as asserted against it is granted.
Motion by LIM and Meisenberg
The branch of the motion by LIM and Meisenberg which is for summary judgment in favor of Meisenberg, is granted.
"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" ( Linkowski v City of New York , 33 AD3d 971 ; see Walls v Turner Constr. Co. , 4 NY3d 861 ; Russin v Louis N. Picciano Son, 54 NY2d 311). To impose such liability, the defendant must have the authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition ( see Linkowski v City of New York, supra; Damiani v Federated Dept. Stores, Inc. , 23 AD3d 329 ). It is not a defendant's title that is determinative, but the degree of control or supervision exercised ( Rodriguez v JMB Architecture, LLC , 82 AD3d 949 ; see generally Aranda v Park E. Constr. , 4 AD3d 315 ; see also Armentano v Broadway Mall Props., Inc. , 30 AD3d 450 ; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464).
In opposition to Meisenberg's prima facie showing of entitlement to judgment as a matter of law, plaintiff failed to raise a triable issue of fact as to whether Meisenberg was an agent of the owners or a general contractor on the project ( see Russin, 54 NY2d 311; Delahaye v Saint Anns School , 40 AD3d 679 ). No evidence was submitted demonstrating that Meisenberg had any control or supervisory role over the work of the injured plaintiff, so as to enable it to prevent or correct any unsafe conditions and, thus, no triable issues of fact were raised as to Meisenberg's liability (see Linkowski, 33 AD3d 971;
Once again, to establish liability against an owner or general contractor pursuant to Labor Law § 200, it must be established that the owner or general contractor exercised supervision and control over the work performed at the site, or had actual or constructive notice of the allegedly unsafe condition ( see Akins v Baker, 247 AD2d 562, 563). The retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the supervision and control of the work site necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200 ( see Warnitz v Liro Group, 254 AD2d 411; D'Antuono v Goodyear Tire Rubber Co. Chem. Div., 231 AD2d 955). Moreover, no liability will attach to the owner solely because it may have had notice of the allegedly unsafe manner in which work was performed ( see Comes v New York State Elec. Gas Corp., 82 NY2d 876; Colon v Lehrer, McGovern Bovis, 259 AD2d 417, 419). Plaintiff failed to offer any evidence to rebut the showing of LIM that this defendant did not supervise or control the plaintiff, or direct the construction procedures or safety measures employed by HHC. Therefore, the branch of the motion which seeks to dismiss plaintiff's Labor Law § 200 claims, insofar as asserted against LIM, is granted.
The branch of the motion which seeks to dismiss plaintiff's claims under section 241 (6), insofar as asserted against LIM, is denied. In support of this claim, plaintiff relied on certain Industrial Code (12 NYCRR) provisions addressing slipping, tripping, storage and lighting hazards. Since there is no evidence that plaintiff fell because of a slippery condition or inadequate lighting, section 23-1.7 (d) and section 23-1.30 do not support his claim. To the extent that the tripping and storage regulations address hazards in passageways, walkways or thoroughfares (§ 23-1.7 [e] ; § 23-2.1 [a] ), they are likewise inapplicable, since the area in which plaintiff was injured was not a passageway. However, section 23-1.7 (e) (2) provides: "Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." Plaintiff testified that on the day of his accident the debris was "scattered" across the middle of the room. Clearly, there is an issue of fact that should be resolved by a jury.
Cross Motion by Rusk
The branch of the cross motion by Rusk which is for summary judgment dismissing plaintiff's claims under Labor Law § 200, is granted.
"When a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" ( McKee v Great Atl. Pac. Tea Co. , 73 AD3d 872 ). Here, the evidence submitted by the parties demonstrated that Rusk neither supervised the plaintiff nor controlled his work, nor had the right to supervise or control the work.
The branch of the motion which is dismiss plaintiff's claims under Labor Law § 241 (6), is denied.
Labor Law § 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor ( see Ross v Curtis — Palmer Hydro — Elec. Co., 81 NY2d 494; Markey v C.F.M.M. Owners Corp. , 51 AD3d 734 ). Plaintiff contends that Rusk acted as the agent of LIM on the instant project. In order to hold a subcontractor or statutory agent of the owner or general contractor absolutely liable under Labor Law § 241, there must be a showing that the subcontractor or agent had the authority to supervise and control the work giving rise to these duties ( see Russin v Louis N. Picciano Son, 54 NY2d 311; Soltes v Brentwood Union Free School Dist. , 47 AD3d 804 ; Everitt v Nozkowski, 285 AD2d 442). "The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right'" ( Bakhtadze v Riddle , 56 AD3d 589 , 590, quoting Williams v Dover Home Improvement, 276 AD2d 626, 626). Here, Rusk failed to establish, prima facie, that it lacked the authority to supervise and control the work giving rise to the injured plaintiff's accident ( see White v Village of Port Chester, AD3d; 922 NYS2d 534); Tomyuk v Junefield Assoc. , 57 AD3d 518 ). John Rusk testified at his deposition that his job consisted of the following powers and duties: a broad range of basically monitoring, advisory services for Dr. Meisenberg, from helping him look at [i.e. find, interview and hire] architects and engineers for the project, looking at [i.e. finding, interviewing and hiring] contractors for the project and monitoring the progress of the project. Rusk is formally designated as the owner's representative in LIM's contact with HHC, which was not only drafted by Rusk, but expressly grants it authority to bind LIM in all matters requiring the latter's approval or authorization. Under the contract, Rusk has the power to (a) override all substitutions by HHC; (b) approve all subcontractors; (c) perform construction and award separate contracts and (d) clean up the site at HHC's cost if HHC failed to do so. Finally, in this connection, Rusk participated in at least nine weekly project meetings in the stead of LIM at which details of the project were not only "discussed" but were decided.
Cross Motion by Mt. Sinai
Mt. Sinai moves for summary judgment in its favor and for contractual indemnification from LIM.
Section 200 of the Labor Law codifies the "common law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" ( Comes v New York State Electric and Gas Corp., 82 NY2d 876, 877). When an injury is caused by a subcontractor's methods or materials rather than by the condition of the work site itself, owners or general contractors can only be held liable under section 200 if they exercised supervision or control over a subcontractor's operations which brought about the injury ( Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343; Comes, supra; Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d 494; Lombardi v Stout, 80 NY2d 290; Russin v Picciano Son, et al, 54 NY2d 311; Reilly v Newireen Associates, et al, 303 AD2d 214; Begor v Mid-Hudson Hardwoods, Inc., 301 AD2d 550). The record does not establish facts necessary to support a finding that Mt. Sinai exercised the requisite supervision or control sufficient to find section 200 liability. In this case, plaintiff was injured when he fell and a set of doors fell upon him as he was installing flooring. It is undisputed that the doors at issue were provided by DSS, and that the doors were removed, after being hung, in order to facilitate the installation of the flooring. Plaintiff also testified that no one, other than his employer, gave him instructions as to how to do his job. Where, as here, the injuries were caused by a contractor's methods of performing a particular construction activity, the owner cannot be held liable under section 200 or the common law unless it exercised supervisory control over the activity ( see Lombardi v Stout, 80 NY2d 290). Plaintiff offered no evidence tending to show such control. Accordingly, the branch of the cross motion which is to dismiss plaintiff's claims under Labor Law § 200 and common law negligence, as pertaining to Mt. Sinai, is granted.
Under Labor Law section 241 (6), liability is imposed on an owner or contractor for failing to comply with the Industrial Code, even if the contractor did not supervise or control the work site, if such a violation was the proximate cause of the accident. The plaintiff alleges that the Labor Law section 241(6) cause of action is predicated on, as herein applicable, a violation of 12 NYCRR section 23-1.7 (e), which deal with tripping and other hazards. Subdivision (2) deals with working areas, and requires that such areas shall be kept free from debris and from scattered tools and materials. Here plaintiff claims that he slipped or tripped on debris on the floor and that the doors fell on him. Plaintiff established that a violation of this provision was the proximate cause of his injuries ( see Blair v Cristani, 296 AD2d 471). Therefore, the branch of the cross motion which is to dismiss plaintiff's Labor Law § 241 (6) claim, insofar as asserted against Mt. Sinai, is denied.
The branch of the motion which seeks summary judgment on Mt. Sinai's claims for contractual indemnification from LIM, is granted. The sublease, dated November 12, 2002, between Mt. Sinai and LIM provides for indemnification of Mt. Sinai by the sublessee, LIM. Specifically, the sublease provides that LIM shall indemnify Mt. Sinai for
"any and all loss, cost, liability, claims, damage and expenses, including . . . attorney's fees and expenses and court costs, penalties and fines incurred in connection with or arising from any injury to sublessee or any other person or for damage to, or loss (by theft or otherwise) of . . . any other person, (I) irrespective of the cause of such injury, damage or loss, if occurring in or about the premises (unless such loss, cost, liability, the claim, damage, and/or expense shall be due to the negligent or willful actions or omissions of the sublessor and/or landlord), and (ii) to the extent caused by the acts, omissions or negligence of the sublessee, its . . . contractors . . . if occurring in or about the building."
Based upon the language of the provision, there is no requirement that LIM be found negligent before triggering the right to indemnification. The indemnification provision in the contract provides for indemnification when the claim arises out of LIM's work, even if LIM has not been negligent. Therefore, although there is no evidence of negligence on LIM's part, the indemnification agreement requires LIM to indemnify Mt. Sinai ( see Brown v Two Exch. Plaza Partners, 76 NY2d 172; Tobio v Boston Props., Inc. , 54 AD3d 1022; Walsh v Morse Diesel, 143 AD2d 653).
Meisenberg opposes this branch of the motion on the ground that since LIM did not interpose an answer to plaintiff's cause of action and no default was taken within one year, Mt. Sinai does not have any causes of action or cross claims pending against LIM. A default judgment against LIM is not barred by CPLR 3215. In the case of a default in answering a third-party complaint, the Court of Appeals in Multari v Glalan Arms Corp., 28 AD2d 122), held that the one-year period referred to in subdivisions (c) and (f) of CPLR 3215 starts to run with the entry of judgment against the third-party plaintiff in the main action. The entry of a default judgment in a third-party action is not required prior to the determination of liability in the main action and before the cause of action for indemnity has accrued (cf. Matter of Valstrey Serv. Corp. v Board of Elections, Nassau County, 2 N Y 2d 413; Satta v City of New York, 272 App. Div. 782; Musco v Conte, 22 A D 2d 121).
The Court grants summary judgment dismissing the plaintiff's causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against Federated. The branch of the motion by Federated which is to dismiss the plaintiff's claims under Labor Law § 241(6), is denied.
The motion by RSS to dismiss the complaint (insofar as asserted against it) and cross claims is granted.
The branch of the motion by LIM and Meisenberg which is for summary judgment in favor of Meisenberg, is granted. The branch of the motion which seeks to dismiss plaintiff's Labor Law § 200 claims, insofar as asserted against LIM, is granted. The branch of the motion by LIM and Meisenberg which is to dismiss plaintiff's claims under section 241 (6), insofar as asserted against LIM, is denied.
The branch of the cross motion by Rusk which is for summary judgment dismissing plaintiff's claims under Labor Law § 200, is granted. The branch of the cross motion by Rusk which is dismiss plaintiff's claims under Labor Law § 241 (6), insofar as asserted against Rusk, is denied.
The branch of the cross motion by Mt. Sinai which is to dismiss plaintiff's claims under Labor Law § 200 and common law negligence, as pertaining to Mt. Sinai, is granted. The branch of the motion by Mt. Sinai, which is to dismiss plaintiff's claims under Labor Law § 241 (6), is denied. The branch of the cross motion by Mt. Sinai which is for contractual indemnification from LIM, is granted.