LUCAS v. CITY OF NEW YORK (2025)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about January 11, 2024, which to the extent appealed from, denied the motion of defendants/third-party plaintiffs/second-third-party plaintiffs Trustees of Columbia University in the City of New York and ACC Construction Corp. for summary judgment dismissing plaintiff's Labor Law §§ 240(1), 200, and common-law negligence causes of action;  denied the motion of Columbia and ACC Construction for summary judgment on their breach of contract cause of action against second third-party defendant/third third-party plaintiff Workwell Partners, Corp.;  denied the motion of Columbia and ACC Construction for summary judgment on their third-party and second third-party claims against third-party defendants Schneider Electric Holdings, Inc. and Schneider Electric Buildings Americas, Inc. (collectively, the Schneider defendants) and Workwell, for contribution and common-law indemnification;  granted plaintiff's cross-motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action;  and granted the motion of the Schneider defendants for summary judgment dismissing the third-party complaint as against them, unanimously affirmed, without costs.

Plaintiff was working as a journeyman electrician installing wall thermostats for a renovation project at Columbia's Mudd Hall when a stack of 8 to 10 pieces of plexiglass tipped over and struck his feet, injuring him.  Each plexiglass panel was approximately 9 feet tall, 46 inches wide,1/212-inch thick, and weighed between 200 to 300 pounds.  Plaintiff testified that the stacked panels were resting lengthwise on the ground against a wall, reaching the approximate height of his waist.

Columbia owned the premises and ACC Construction was the general contractor on the project.  Nonparty DirectAire subcontracted the Schneider defendants to supply the thermostat components and related software.  The Schneider defendants subcontracted plaintiff's employer to install the thermostats.  ACC Construction subcontracted Workwell to install demountable partitions and Workwell in turn hired third-party defendant American Storage & Transportation, Inc. to deliver Workwell's materials to the site, including the glass panels at issue.

Supreme Court correctly granted plaintiff's cross-motion for summary judgment on liability on his Labor Law § 240(1) cause of action.  Initially, Columbia's and ACC's argument that plaintiff's cross-motion was untimely is unavailing because plaintiff's cross-motion sought nearly identical relief as Columbia's and ACC Construction's motion for summary judgment on the same claim (see Connor v. AMA Consulting Engrs. PC, 213 A.D.3d 483, 484, 184 N.Y.S.3d 316 [1st Dept. 2023], lv denied and dismissed 40 N.Y.3d 1088, 203 N.Y.S.3d 248, 226 N.E.3d 360 [2024];  Fritz v. JLG Indus., Inc., 193 A.D.3d 641, 643, 148 N.Y.S.3d 93 [1st Dept. 2021]).  As to the merits of the claim, plaintiff established prima facie entitlement to summary judgment through deposition testimony and photographs.  The unrebutted opinion of plaintiff's expert established that even though the load was positioned on the same level as plaintiff and only fell a short distance, the weight of the plexiglass panels was capable of generating extraordinary force such that securing devices of the kind enumerated in Labor Law § 240(1) were needed to stabilize the load and make the worksite safe (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011];  Grigoryan v. 108 Chambers St. Owner, LLC, 204 A.D.3d 534, 534, 165 N.Y.S.3d 290 [1st Dept. 2022];  see also Spero v. 3781 Broadway, LLC, 214 A.D.3d 546, 547, 186 N.Y.S.3d 20 [1st Dept. 2023]).  In opposition, Columbia and ACC Construction failed to raise a triable issue of fact.  The evidence thus establishes that a violation of Labor Law § 240(1) proximately caused plaintiff's accident.  Columbia and ACC Construction's sole proximate cause argument is therefore unavailing because plaintiff cannot be solely blamed for his injuries (see Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003];  Quiroz v. Memorial Hosp. for Cancer & Allied Diseases, 202 A.D.3d 601, 604, 163 N.Y.S.3d 60 [1st Dept. 2022]).

The court properly denied Columbia's and ACC Construction's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence causes of action because there was evidence that ACC Construction instructed Workwell where to stage the glass panels at the worksite.  Moreover, there is evidence that ACC Construction's staging instructions differed from the regular practice of Workwell's delivery subcontractor, raising triable issues of fact as to whether ACC Construction supervised the means and methods of the injury producing work or had a part in creating a hazardous staging condition (see Cackett v. Gladden Props., LLC, 183 A.D.3d 419, 420–421, 123 N.Y.S.3d 581 [1st Dept. 2020];  Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143–144, 950 N.Y.S.2d 35 [1st Dept. 2012]).

The Schneider defendants are entitled to summary judgment dismissing Columbia's and ACC Construction's third-party complaint because the record is devoid of evidence of negligence on the part of the Schneider defendants in causing plaintiff's accident (CPLR 1401;  see McCarthy v. Turner Const., Inc., 17 N.Y.3d 369, 375–376, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011];  Raquet v. Braun, 90 N.Y.2d 177, 182–183, 659 N.Y.S.2d 237, 681 N.E.2d 404 [1997]).  Notably, the Schneider defendants had no employees at the renovation site during the installation work.

The court properly denied Columbia's and ACC Construction's motion for partial summary judgment on their causes of action for contribution and common-law indemnification against Workwell.  Regarding the contribution claim, triable issues of fact remain as to whether Workwell was non-negligent in the cause of plaintiff's accident.  As to the common-law indemnification claim, ACC Construction, as the indemnitee, must show that it was non-negligent and neither caused the accident nor supervised and controlled the injury-producing work (see Naughton v. City of New York, 94 A.D.3d 1, 6, 940 N.Y.S.2d 21 [1st Dept. 2012]).  There are triable issues of fact as to whether ACC Construction was negligent and contributed to the occurrence of plaintiff's accident by directing the placement of the glass panels and by directing that the staging take place while other trades were working in the area.

The court likewise properly denied Columbia's and ACC Construction's motion for summary judgment against Workwell for breach of contract for failure to procure insurance.  In support of this motion, Columbia and ACC Construction were required to show via testimonial or documentary evidence from Workwell's insurer that they were not named as insureds on any policies issued (see Dorset v. 285 Madison Owner LLC, 214 A.D.3d 402, 404, 185 N.Y.S.3d 61 [1st Dept. 2023];  see also Cooper v. Building 7th St. LLC, 231 A.D.3d 533, 534, 218 N.Y.S.3d 328 [1st Dept. 2024]).  Columbia's and ACC Construction's unsubstantiated statements that Workwell lacked the requisite insurance did not meet their prima facie burden.