SAVLAS v. CITY OF NEW YORK (2018)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about December 2, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing the Labor Law § 241(6) claim as against them, denied defendant City of New York's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, denied defendants Malcolm Pirnie, Inc., URS Corporation–New York and URS Corporation's (collectively, URS–MP) motion for summary judgment dismissing the common-law negligence claim as against them and on their contractual indemnification claim against defendant CSM Engineering, P.C., and granted CSM's motion for summary judgment dismissing the City's and URS–MP's cross claims for contractual indemnification as against it, unanimously modified, on the law, to grant URS–MP's motion as to the common-law negligence claim, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.

While working for a contractor at a construction project owned by the City, plaintiff tripped and fell over one of several steel plates covering openings into a lower level of a project building.  The motion court correctly dismissed the Labor Law § 241(6) claim premised on a violation of Industrial Code (22 NYCRR) § 23–1.7(e)(2), because the plates were not scattered materials or debris, but an integral part of the construction (see O'Sullivan v. IDI Constr. Co., Inc., 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006];  Thomas v. Goldman Sachs Headquarters, LLC, 109 A.D.3d 421, 422, 970 N.Y.S.2d 224 [1st Dept. 2013];  Zieris v. City of New York, 93 A.D.3d 479, 480, 940 N.Y.S.2d 72 [1st Dept. 2012] ).

The court correctly found that neither URS–MP, the construction manager, nor CSM, its subcontractor, was a general contractor or an agent of the City, and correctly dismissed the complaint as against CSM (see Hutchinson v. City of New York, 18 A.D.3d 370, 795 N.Y.S.2d 554 [1st Dept. 2005] ).  The court also correctly dismissed all claims against CSM for contractual indemnification, because there is no evidence that CSM was negligent in the performance of its contract with URS–MP so as to trigger the indemnification clause.  However, the court erred in declining to dismiss the common-law negligence claim as against URS–MP (see DaSilva v. Haks Engrs., Architects & Land Surveyors, P.C., 125 A.D.3d 480, 4 N.Y.S.3d 162 [1st Dept. 2015] ).  URS–MP's contract did not establish authority on its part to control the work site.  Moreover, plaintiff was not a third-party beneficiary of the contract, and there is no evidence that URS–MP caused or created the alleged dangerous condition of the work site.

The City failed to demonstrate that its employees neither created nor had actual or constructive notice of the alleged dangerous condition of the steel plates and that therefore the Labor Law § 200 and common-law negligence claims should be dismissed as against it (see Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 6, 919 N.Y.S.2d 129 [1st Dept. 2011] ).  The City's alternative arguments, that the alleged height differential between the floor and the plate was de minimis (see Munasca v. Morrison Mgt. LLC, 111 A.D.3d 564, 975 N.Y.S.2d 402 [1st Dept. 2013] ) and that the alleged defect was open and obvious and not actionable as a matter of law, are unavailing (see Farrugia v. 1440 Broadway Assoc., 163 A.D.3d 452, 454–455, 82 N.Y.S.3d 1 [1st Dept. 2018] ).

We have considered plaintiff's and the City's remaining arguments for affirmative relief and find them unavailing.