HERRERO v. 2146 NOSTRAND AVENUE ASSOCIATES LLC (2021)

Order, Supreme Court, New York County (Paul A Goetz, J.), entered January 3, 2020, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, denied defendants 2146 Nostrand Avenue Associates, LLC (2146 Nostrand), ACHS Management Corp., 49th Broadway, LLC d/b/a Dallas BBQ, and Nostrand Enterprises, LLC d/b/a Dallas BBQ's (Nostrand Enterprises) (collectively, the Nostrand Defendants) motion for summary judgment dismissing the complaint and all cross claims, counterclaims, and third-party claims against them and on their contractual indemnification claims against third-party defendant (JD Consulting), defendant Shawmut Woodworking & Supply, Inc., and third third-party defendant (Trison), and denied Shawmut's cross motion for summary judgment dismissing the complaint as against it and on its claim for contractual indemnification against JD Consulting, unanimously modified, on the law, to grant the Nostrand Defendants’ motion for summary judgment dismissing the complaint as against 49th Broadway and the Labor Law § 200 and common-law negligence claims and all cross claims, counterclaims, and third-party claims against the remaining Nostrand Defendants, and for unconditional summary judgment on their contractual indemnification claim against JD Consulting and on Nostrand Enterprises’ contractual indemnification claim against Shawmut, and to grant Shawmut conditional summary judgment on its contractual indemnification claim against JD Consulting, and otherwise affirmed, without costs.

Plaintiff was injured when the platform of a baker's scaffold fell through its framework, causing him to fall four feet to the ground.  He was using an unidentified contractor's scaffold, instead of one made readily available by his employer, JD Consulting.  To date, no one has admitted to ownership of the scaffold.

The court properly granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, as the record demonstrates, contrary to defendants’ contention, that plaintiff was not the sole proximate cause of his accident.  While plaintiff decided to use the scaffold of an unknown contractor, instead of one provided by his employer, JD Consulting, that he knew was readily available, there is no evidence that he “knew he was expected to use” only JD Consulting's scaffolds (Biaca–Neto v. Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1167–1168, 121 N.Y.S.3d 753, 144 N.E.3d 363 [2020];  see also Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010]).

In view of the foregoing, defendants’ arguments in support of dismissing the Labor Law § 241(6) claim are academic (see Cronin v. New York City Tr. Auth., 143 A.D.3d 419, 38 N.Y.S.3d 544 [1st Dept. 2016]).  However, their arguments about the Labor Law § 200 and common-law negligence claims are not academic, because they are relevant to the indemnification issues on appeal (DaSilva v. Everest Scaffolding, Inc., 136 A.D.3d 423, 424, 25 N.Y.S.3d 141 [1st Dept. 2016]).

Liability under Labor Law § 200 in this case may arise from either the “means and methods” of plaintiff's work or a dangerous condition on the site or both (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012]).  While plaintiff's use of a scaffold belonging not to JD Consulting but to another contractor relates to the means and methods of his work, which JD Consulting had authority to remedy, the presence of a defective scaffold onsite that is usable constitutes a dangerous condition that the property owner and general contractor may have authority to remedy (see Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 51–52, 919 N.Y.S.2d 44 [2d Dept. 2011];  Chowdhury v. Rodriguez, 57 A.D.3d 121, 122–123, 129–130, 867 N.Y.S.2d 123 [2d Dept. 2008];  see also Jaycoxe v. VNO Bruckner Plaza, LLC, 146 A.D.3d 411, 44 N.Y.S.3d 395 [1st Dept. 2017]).

On appeal, plaintiff argues only that ACHS, the property manager, and Shawmut, the general contractor, are liable under Labor Law § 200 and in common-law negligence.  ACHS cannot be held liable under either the means and methods or the dangerous condition theory of liability, because the record demonstrates that it neither had authority to control plaintiff's work nor created or had notice of the dangerous condition (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012]).  Shawmut cannot be held liable under the means and methods theory, because it had only general supervisory authority over the construction site, which is insufficient to demonstrate control over plaintiff's work (see Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., 104 A.D.3d 446, 449, 961 N.Y.S.2d 91 [1st Dept. 2013];  Foley v. Consolidated Edison Co. of N.Y., Inc., 84 A.D.3d 476, 477–478, 923 N.Y.S.2d 57 [1st Dept. 2011]).  However, an issue of fact exists as to Shawmut's liability under the dangerous condition theory, as it had authority to control site safety, including the safety of the equipment on site, and a factual issue exists as to whether it had actual or constructive notice of the dangerous condition and could have remedied the condition.  Shawmut's representatives testified that Shawmut had general safety standards that applied to all projects and subcontractors.  Although they testified that Shawmut's subcontractors were responsible for inspecting their own scaffolds, they also testified that Shawmut performed visual inspections to make sure the equipment appeared safe.  In addition, Shawmut's superintendent was onsite daily, performed daily walkthroughs to look for safety hazards, and had the authority to remove any unsafe equipment from the floor.  Moreover, the superintendent said that the lack of a factory platform on a scaffold was discoverable upon visual inspection.

The record demonstrates that the Nostrand Defendants are free from active negligence, and there is no proof of any contracts that impose obligations on them.  Thus, all cross claims, counterclaims, and third-party claims against them for contribution/common-law indemnification, contractual indemnification, and breach of contract must be dismissed.  As it undisputed that 49th Broadway is the corporate name of another Dallas BBQ restaurant, and had nothing to do with subject construction project, all claims must be dismissed as against it.

Because issues of fact exist as to its negligence, Shawmut is entitled to conditional summary judgment on its contractual indemnification claim against JD Consulting (Antoniak v. P.S. Marcato El. Co., Inc., 144 A.D.3d 407, 40 N.Y.S.3d 112 [1st Dept. 2016];  Auliano v. 145 E. 15th St. Tenants Corp., 129 A.D.3d 469, 11 N.Y.S.3d 50 [1st Dept. 2015]).  To the extent JD Consulting invokes General Obligations Law § 5–322.1, it is unavailing;  the indemnification clause contains the “to the fullest extent” savings language (see Ramirez v. Almah, LLC, 169 A.D.3d 508, 94 N.Y.S.3d 38 [1st Dept. 2019];  Williams v. City of New York, 74 A.D.3d 479, 480, 907 N.Y.S.2d 1 [1st Dept. 2010]).

Because they are free from active negligence, the Nostrand Defendants are entitled to unconditional summary judgment on their contractual indemnification claim against JD Consulting under the Shawmut/JD Consulting subcontract (Guzman v. 170 W. End Ave. Assoc., 115 A.D.3d 462, 463–464, 981 N.Y.S.2d 678 [1st Dept. 2014];  Britez v. Madison Park Owner, LLC, 106 A.D.3d 531, 532–533, 966 N.Y.S.2d 7 [1st Dept. 2013]).

Only Nostrand Enterprises is entitled to summary judgment on the contractual indemnification claim against Shawmut, because it is the only one of the Nostrand Defendants that is an indemnitee under its general contract with Shawmut.  Nostrand Enterprises is unconditionally entitled to contractual indemnification to the extent not barred by the anti-subrogation rule (Higgins v. TST 375 Hudson, LLC, 179 A.D.3d 508, 511, 119 N.Y.S.3d 80 [2020];  see DeJesus v. Tyree Org., 307 A.D.2d 897, 898–899, 764 N.Y.S.2d 404 [1st Dept. 2003]).

Although they are free from active negligence, the Nostrand Defendants are not entitled to conditional summary judgment on their contractual indemnification claim against Trison, because the indemnification clause in the Shawmut/Trison Site Access Agreement has not been triggered, and any claim that Trison owned the ladder is speculative.