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Luis LEON and John Telmo Rodriguez Curipoma, Plaintiffs, v. EAST HARLEM COUNCIL FOR HUMAN SERVICES, INC. d/b/a Boriken Neighborhood Health Center and Westerman Construction Company, Inc., Defendants.
East Harlem Council For Human Services Inc., d/b/a Boriken Neighborhood Health Center and Westerman Construction Company, Inc., Third–Party Plaintiffs, v. Elite Demoltions Contracting, Corp., Third–Party Defendant.
Elite Demolitions Contracting, Corp., Second Third–Party Plaintiffs, v. Mele Contracting, Inc., Second Third–Party Defendant.
The following papers numbered 1 to 13 read herein: Papers Numbered
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1–2, 3–4, 5–6
Opposing Affidavits (Affirmations) 7, 8, 9, 10
Reply Affidavits (Affirmations) 11, 12, 13
Upon the foregoing papers, plaintiffs, Luis Leon (Leon) and John Telmo Rodriguez Curipoma (Curipoma) (collectively, plaintiffs), each move (Motions Sequence # 9, # 11, respectively) for an order, pursuant to CPLR § 3212, granting them partial summary judgment against defendants/third-party plaintiffs East Harlem Council For Human Services, Inc. d/b/a Boriken Neighborhood Health Center (East Harlem) and Westerman Construction Company, Inc. (Westerman) on the issue of liability pursuant to Labor Law § 240 (1). East Harlem and Westerman also move (Motion Sequence # 10) for an order, pursuant to CPLR 3212, granting them: (1) summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims; (2) partial summary judgment against third-party defendant Elite Demolition Contracting Corp. (Elite) for indemnity and contribution; and (3) summary judgment dismissing Elite's counterclaims for indemnity and contribution.
At all relevant times, East Harlem owned and operated the improved premises known as the Boriken Neighborhood Health Center, located at 2265 Third Avenue in Manhattan (the “Premises”). On or about January 25, 2012, East Harlem hired Westerman as the general contractor for a construction project, namely, the gut renovation of the subject building. Westerman later hired Elite to perform demolition services. Elite employed plaintiffs as laborers.
On May 7, 2012, plaintiffs were tasked with demolishing the interior of the building annex, described as a large room, three stories high, with one floor and a basement. The job called for leaving only the exterior walls and structural members of the annex in place. Shortly after commencing work—plaintiffs were removing, by hand, debris from the ceiling—when the floor 1 upon which they stood collapsed, causing them to fall approximately 11 feet to the basement floor. Plaintiffs suffered injuries as a consequence.
Leon commenced the instant action against defendants by filing a summons and complaint against East Harlem and Westerman with this court on August 27, 2012. East Harlem and Westerman interposed an answer, and then impleaded Elite. Elite later answered the third-party pleading. Meanwhile, on or about November 2, 2012, Curipoma commenced a similar action against East Harlem and Westerman in Supreme Court, Queens County. By order of this court dated May 11, 2013, Curipoma's action was consolidated into the instant action.
In their respective complaints, plaintiffs assert that East Harlem is the owner of the subject premises and that Westerman is a contractor hired by the owners to complete the construction project. As relevant to the instant motions, plaintiffs claim that defendants are thus subject to vicarious liability, without regard to fault, according to Labor Law § 240 (1). Also, plaintiffs allege that East Harlem and Westerman breached their duty, pursuant to the common law and Labor Law § 200, to keep the construction site clear of hazards. Plaintiffs contend that these Labor Law violations and negligent breaches of the common-law duty proximately caused their injuries, and they seek damages as a result.
Discovery ensued, and on June 30, 2016, Leon filed a note of issue, a jury demand, and certificate of readiness certifying that all discovery is complete and that this action is ready for trial.2 The instant motions followed.
Arguments Advanced By Plaintiffs In Support Of Their Motions
In support of their 3 motions, plaintiffs first note that Labor Law § 240 (1) was enacted to protect workers from elevation-related risks inherent in construction work. They further point out that owners and general contractors—here, East Harlem and Westerman—are vicariously liable for violations of Labor Law § 240 (1) irrespective of fault. They also add that where injured workers were not furnished with proper protection against falls or falling objects, Labor Law § 240 (1) is thus violated. Since the duty to provide proper protection is nondelegable, they conclude that East Harlem and Westerman are properly subject to Labor Law § 240 (1) liability.
Plaintiffs further contend that they were performing demolition work (an activity enumerated in Labor Law § 240 —such tasks are sometimes referred to as “protected activities”) when the accident occurred. They then state that the subject platform, which collapsed, was the only safety device provided against the risk of them falling. They argue that the collapse of such a safety device is sufficient to establish prima facie entitlement to judgment as a matter of law against an owner and general contractor on the issue of liability pursuant to Labor Law § 240 (1). For purposes of summary judgment, it is unnecessary, they continue, to show that the platform was defective or poorly constructed. They also maintain that they need not show what caused the subject platform to collapse. In sum, they argue that the record establishes that they fell and suffered injuries because an inadequate platform collapsed; accordingly, they conclude, they are entitled to partial summary judgment against defendants on the issue of Labor Law § 240 (1) liability.
Arguments Advanced By East Harlem And Westerman In Support Of Their Motion
In support of their motion, East Harlem and Westerman assert that they are not subject to liability for plaintiffs' injuries pursuant to either common-law negligence doctrines or Labor Law § 200. To bolster this argument, they first analyze common-law rules of premises liability. They note that plaintiffs are alleging that they were injured as a result of the collapse of the floor on which they stood. East Harlem and Westerman characterize the accident as spontaneous; they claim that nothing forewarned them of the floor collapse. They also note that the record lacks any indication that their agents affected the structural integrity of the floor; thus, they reason, according to the record, that they did not create any hazardous condition. Moreover, they continue, the record lacks any indication that they received concerns or complaints about the subject floor; therefore, they claim, the record indicates that no actual notice of a hazard was given to them. Finally, they assert that there were no visible or apparent features of the subject floor that would lead one to conclude that it lacked structural integrity; for this reason, they argue that there was no constructive notice of a potential collapse. Accordingly, conclude East Harlem and Westerman, pursuant to premises liability principles, they are not subject to liability for the floor collapse and plaintiffs' consequent injuries.
Next, East Harlem and Westerman assert that they are not subject to liability as supervisors of plaintiffs' work. They claim that no plaintiff received directions from any agent of either East Harlem or Westerman. They further contend that none of their agents controlled work performed by Elite (or other subcontractors). Also, and to the extent that East Harlem and Westermen had safety inspectors present in relevant areas, they argue that appellate courts do not consider such a presence as the requisite direction and control for liability. Moreover, they continue, the methods and means of the subject demolition project were controlled only by plaintiffs' foreman, an Elite employee. East Harlem and Westerman argue that since the accident arose out of the demolition project, controlled by plaintiffs' employer, they are thus not subject to liability for this action pursuant either to common-law premises liability doctrine or Labor Law § 200. Lastly, East Harlem and Westerman assert that any attempt by the other parties in this action to causally link either the owner or general contractor to the spontaneous floor collapse is impermissible speculation, insufficient to defeat summary judgment. For these reasons, East Harlem and Westerman conclude that they are entitled to summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims.
Finally, East Harlem and Westerman argue that they 4 are entitled to summary judgment on the issue of contractual indemnification against Elite. They point out that Westerman and Elite entered into a written agreement covering the demolition work and that the agreement contains a provision whereby Elite agreed to indemnify Westerman for claims related to the subject project. East Harlem and Westerman claim that the provision, which contains a phrase limiting indemnification to the extent permitted by law, is both applicable and enforceable. They reason that if this court grants their motion for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims, they have then established that they did not commit negligent acts or omissions in connection with the accident. As such, they reason that they have demonstrated entitlement to judgment as a matter of law on their third-party claim for contractual indemnification against Elite. For these reasons, East Harlem and Westerman conclude that this court should grant their motion in its entirety.
Arguments Advanced By Elite In Opposition To Instant Motions
In opposition to the motions made by plaintiffs,5 Elite first asserts that the motions are procedurally defective. Elite points out that CPLR 3212 (b) requires all movants to attach, as exhibits, copies of the pleadings to motion papers. Elite notes that plaintiffs have failed to do so, and, accordingly, argues that this court should deny plaintiffs' motion on this ground.
Alternatively, Elite argues that plaintiffs' motions should be denied because they are not based on admissible evidence. Elite notes that plaintiffs are relying almost exclusively on deposition testimony in their effort to demonstrate prima facie entitlement to judgment as a matter of law. However, Elite continues, the deposition transcripts, copies of which are attached to plaintiffs' motion papers, have not been properly executed by the respective deponents. Therefore, reasons Elite, in order for the unsigned transcripts to properly be considered, plaintiffs had to show that the transcripts were submitted to the deponents and that 60 days elapsed thereafter. Elite points out that plaintiffs have not demonstrated that the transcripts were forwarded to the respective deponents; Elite adds that plaintiffs do not even submit complete copies of the subject transcripts. Absent any indication that the complete transcripts were forwarded to deponents, Elite concludes that the incomplete copies do not sufficiently support plaintiffs' summary judgment motions; accordingly, argues Elite, the motions should be denied on this alternate ground.
Again in the alternative, Elite argues that the motions should be denied because plaintiffs have not established that a violation of Labor Law § 240 (1) contributed to their action. Elite asserts that plaintiffs' allegation that the subject floor collapsed is insufficient to establish the existence of such a violation. Instead, Elite continues, an injured worker must demonstrate that the collapse of a permanent floor was foreseeable, thereby necessitating safety devices of the kind enumerated in Labor Law § 240 (1) to protect against the risk of falling. Here, Elite maintains, nothing in the record indicates that the floor collapse was imminent. Instead, continues Elite, the applicable deposition testimony shows that the respective witnesses had no reason to believe that the subject floor would collapse. Therefore, reasons Elite, plaintiffs have not demonstrated that the floor collapse was foreseeable, and that fall-protection devices were thus necessary. Elite contends that since plaintiffs have not shown that such devices were necessary, plaintiffs have thus not demonstrated the existence of a Labor Law § 240 (1) violation. Accordingly, concludes Elite, plaintiffs' motions for summary judgment should be denied on the merits.
Next, Elite asserts that East Harlem and Westerman are likewise not entitled to summary judgment. Mainly, Elite bases its position on the allegation that East Harlem and Westerman had constructive notice of the unstable floor yet did nothing to remedy the hazard. Elite notes the deposition testimony in the record, indicating that several days prior to the accident, Elite's owner informed Westerman that the floor was unstable. Specifically, he testified that he spoke to Westerman's principal about how additional reinforcement of the floor was necessary. Thus, reasons Elite, Westerman had notice of the hazard that led to the accident. Additionally, Elite continues, notice to Westerman imputes the same notice to East Harlem because of the agency relationship between them. Elite argues that, therefore, the property owner also received the requisite notice. For these reasons, Elite concludes that Westerman and East Harlem are properly subject to liability pursuant to both Labor Law § 200 and principles of premises liability, and their motion for summary judgment dismissing those claims should thus be denied.
Lastly, Elite addresses issues of indemnification and miscellaneous contentions. First, Elite asserts that there is no merit to the suggestion that Elite's methods led to the subject accident. Elite points out that the record reflects that plaintiffs had been standing on the subject floor (while performing work) for only a few moments before the floor collapsed. Elite also notes that, immediately prior to the floor collapse, plaintiffs were placing pieces of ceiling debris in containers. Elite suggests that such work could not have led to the floor collapse; instead, Elite continues, the record leads to the conclusion that Westerman's failure to reinforce the floor caused the collapse. Elite asserts that, therefore, the manner in which plaintiffs performed their work is immaterial. Next, Elite maintains that Westerman 6 is not entitled to indemnification from it. Elite reiterates that Westerman should have reinforced the floor upon receiving notice that additional posts were necessary, but did not. Therefore, Elite reasons, Westerman's negligence contributed to the accident, and Westerman's attempt to have Elite indemnify Westerman for its own negligence is precluded by the General Obligations Law. Elite contends that Westerman is thus not entitled to partial summary judgment on the issue of contractual indemnification. Lastly, Elite argues that East Harlem and Westerman are not entitled to summary judgment dismissing Elite's counterclaims for common-law indemnification. Elite reasons that since it is plaintiffs' employer, it will not be directly liable in this action. However, Elite continues, if it is held liable, it would be only because of the negligence of Westerman and East Harlem. Thus, concludes Elite, under common-law principles, Westerman and East Harlem would then thus be required to indemnify (or contribute to) Elite for damages. Accordingly, Elite asks this court to deny the motion of Westerman and East Harlem in its entirety.
Arguments Advanced By East Harlem And Westerman In Opposition To Plaintiffs' Motions
In opposition to plaintiffs' motions for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1), Westerman and East Harlem first argue that an issue of fact exists as to whether plaintiffs were exposed to the class of elevation-related hazards within the purview of Labor Law § 240 (1). Westerman and East Harlem acknowledge that plaintiffs fell, but argue that, in this action, the absence or failure of a safety device did not enable the accident. Instead, Westerman and East Harlem continue, the accident occurred when the permanent floor upon which plaintiffs stood collapsed. Moreover, Westerman and East Harlem state that plaintiffs' own deposition testimony identified the permanent floor as sturdy.
Westerman and East Harlem contend that although there is appellate authority suggesting that a floor collapse is a hazard within the scope of Labor Law § 240 (1), the same authority limits such claims to those where the collapse was foreseeable. Here, however, Westerman and East Harlem maintain that there is no evidence suggesting that the accident was predictable. The deposition testimony establishes that the floor was secure, they say, and, therefore, there was no need to provide plaintiffs with safety devices against the risk of falling.
Alternatively, Westerman and East Harlem assert that plaintiffs have not demonstrated, prima facie, that Labor Law § 240 (1) was violated. Westerman and East Harlem claim that plaintiffs do not identify any safety device that, if provided, would have prevented the accident. Westerman and East Harlem suggest that the floor itself does not qualify as a safety device, and since plaintiffs were not required to work high above ground, other typical devices would not have been effective. Accordingly, reason Westerman and East Harlem, plaintiff cannot demonstrate that the failure to provide a safety device was the proximate cause of their injuries. Westerman and East Harlem conclude, therefore, that this court should not award plaintiffs summary judgment on their Labor Law § 240 (1) claims.
Lastly, and in the alternative, Westerman and East Harlem assert that summary judgment with respect to Labor Law § 240 (1) should be denied as premature because discovery remains outstanding. Westerman and East Harlem point out that they recently commenced the third-party action against professional engineer Brian Flynn (and his professional corporation); Flynn only recently interposed an answer. According to Westerman and East Harlem, the deposition of Flynn is indispensable to the issue of whether the subject floor was intended to be permanent. Westerman and East Harlem note other outstanding discovery as well. For this alternate reason, Westerman and East Harlem conclude that this court should deny plaintiffs' respective motions.
Summary Judgment Standard
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005]; see also Andre v. Pomeroy, 35 NY2d 361, 364  ). However, a summary judgment motion will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967 ; Zuckerman v. City of New York, 49 NY2d 557, 562  ), and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material factual issues (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 , citing Zuckerman, 49 NY2d at 562).
Proponents of a motion for summary judgment must first demonstrate entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact (Manicone v. City of New York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez, 68 NY2d at 324; see also Zuckerman, 49 NY2d at 562; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853  ). If this burden is met, the court must evaluate whether the issues of fact alleged by the opponent are genuine or unsubstantiated (Gervasio v. Di Napoli, 134 AD2d 235, 236 [2d Dept 1987]; Assing v. United Rubber Supply Co., 126 AD2d 590 [2d Dept 1987]; Columbus Trust Co. v. Campolo, 110 AD2d 616 [2d Dept 1985], affd 66 NY2d 701  ). Conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment (Spodek v. Park Property Dev. Assocs., 263 AD2d 478 [2d Dept 1999] ). “[A]verments merely stating conclusions, of fact or of law, are insufficient [to] defeat summary judgment” (Banco Popular North America v. Victory Taxi Management, Inc., 1 NY3d 381, 383 , quoting Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 NY2d 285, 290  ). Lastly, if there is no genuine issue of fact, the case should be summarily decided (Andre, 35 NY2d at 364).
Labor Law § 240 (1)
The court grants plaintiffs' motions and awards each plaintiff partial summary judgment against East Harlem and Westerman on the issue of liability pursuant to Labor Law § 240 (1). The statute states, in relevant part, that:
“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed ․”
Labor Law § 240 (1) was enacted to “prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 NY2d 494, 501  ). Thus, the purpose of Labor Law § 240 (1) is “to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials” (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 ; see also Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 ; Ross, 81 NY2d at 501). Accordingly, Labor Law § 240 (1) is implicated in an injury that directly flows from the application of the force of gravity to an object or to the injured worker performing a protected task (Gasques v. State of New York, 15 NY3d 869 ; Vislocky v. City of New York, 62 AD3d 785, 786 , lv dismissed 13 NY3d 857 ; see also Lacey v. Turner Constr. Co., 275 AD2d 734, 735 ; Ienco v. RFD Second Ave., LLC, 41 AD3d 537 ; Ortiz v. Turner Constr. Co., 28 AD3d 627 ; Smith v. Artco Indus. Laundries, 222 AD2d 1028  ). Also, the duty to provide “proper protection” against elevation-related risks is nondelegable; therefore, owners and contractors are liable for the violations of their agents even if the owners or contractors have not exercised supervision and control over the subject work or the injured worker (Rocovich, 78 NY2d at 513). Lastly, this statute “is to be construed as liberally as may be” to protect workers from injury (Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 520–521 , quoting Quigley v. Thatcher, 207 NY 66, 68 ; see also Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. 18 NY3d 1, 7  [“a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability”] ).
Here, there is no dispute that East Harlem and Westerman are, respectively, the owner and contractor. Therefore, East Harlem and Westerman are subject to absolute vicarious liability for violations of these provisions without regard to fault (see generally Alfonso v. Pacific Classon Realty, LLC, 101 AD3d 768, 770 [2d Dept 2012] [vicarious liability provision of Labor Law § 240 (1) applies to owners, contractors, and their agents]; Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 521  [owner or contractor is liable for Labor Law § 240 (1) violation “without regard to ․ care or lack of it”] ). Also, since plaintiffs were caused to fall approximately 11 feet after the floor collapsed, they were exposed to an elevation-related hazard (see e.g. Zong Mou Zou v. Hai Ming Constr. Corp., 74 AD3d 800, 801 [2d Dept 2010] [worker injured when sheet metal decking collapsed underneath him causing him to fall 10 to 13 feet to the basement established Labor Law § 240 (1) violation] ). Therefore, Labor Law § 240 (1) applies here.
Nevertheless, there remains the main point of contention: whether the surface upon which plaintiffs stood was a permanent floor or a constructed platform. However, the distinction is immaterial here. If the floor were considered a platform, plaintiffs have established prima facie entitlement to judgment as a matter of law with respect to defendants' liability pursuant to Labor Law § 240 (1). Plaintiffs were performing demolition work while standing on the alleged platform and were exposed to an elevation-related risk; the alleged platform is thus “the functional equivalent of scaffolding” (Ramirez v. Metropolitan Transp. Auth., 106 AD3d 799, 800 [2d Dept 2013] [plaintiff was injured while performing work when plank on catwalk on which he stood broke and caused him to fall] ). Indeed, various types of structures that are not safety devices enumerated in Labor Law § 240 (1) have been deemed the “functional equivalent” of an enumerated safety device (see e.g. Brennan v. RCP Assocs., 257 AD2d 389 [1st Dept 1999] [steel grating six feet above ground used by injured worker to access cooling tower for repair constitutes functional equivalent of scaffold], lv dismissed 93 NY2d 889 ; Godoy v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 104 AD3d 646, 647 [2d Dept 2013] [plaintiff established prima facie Labor Law § 240 (1) liability by submitting evidence that floor she stood on was unstable and collapsed] ). The collapse of the alleged platform establishes plaintiffs' entitlement to summary judgment (Tapia v. Mario Genovesi & Sons, Inc., 72 AD3d 800, 801  [“(s)ince the scaffold collapsed, the plaintiff established, prima facie, that he was not provided with an adequate safety device to do his work, as required by Labor Law § 240 (1), and that this statutory violation was a proximate cause of his injury”] ).
The collapse of a permanent floor, however, only establishes liability pursuant to Labor Law § 240 (1) where “circumstances are such that there is a foreseeable need for safety devices” (Balladares v. Southgate Owners Corp., 40 AD3d 667, 669 [2d Dept 2007] ).7 If plaintiffs cannot demonstrate that the collapse was foreseeable, the prima facie burden is not met (see e.g. Carrillo v. Circle Manor Apts., 131 AD3d 662 [2d Dept 2015] [plaintiffs failed to demonstrate that partial collapse of basement and need for safety devices were foreseeable, prima facie burden not met] ). Nevertheless, here, the record indicates that the collapse of the floor was foreseeable. Specifically, and as noted by Elite employee Fabio Bordone (See Defendant East Harlem's Motion, Exhibit “Y”, pages 107–110) Westerman's principal was told days before the accident that additional securing of the floor was necessary. Defendants East Harlem and Westerman do not refute this statement in their Reply Affirmation to Elite's Opposition. Since the record indicates that the relevant area was structurally unsound, the collapse of the permanent surface suffices to establish a prima facie violation of Labor Law § 240 (1) (Taylor v. V.A.W. of Am., 276 AD2d 621, 622 [2d Dept 2000] ).
Therefore, irrespective of whether plaintiffs stood on a permanent floor or temporary platform, the collapse of the subject surface constitutes prima facie entitlement to partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) (cf. Melchor v. Singh, 90 AD3d 866, 868 [2d Dept 2011] [issue of proper protection is question of fact except when safety device “collapses, moves, falls, or otherwise fails”]; Nelson v. Ciba–Geigy, 268 AD2d 570, 572 [2d Dept 2000] [liability pursuant to Labor Law § 240 (1) is a question of fact except when the device collapses, moves, falls] ). Since there is no indication in the record that either plaintiff “engaged in unforeseeable, reckless activities [or] misused a safety device that was provided” (Beharry v. Public Stor., Inc., 36 AD3d 574, 575 [2d Dept 2007] ), no material issue of fact has been raised and plaintiffs' motions for partial summary judgment against East Harlem and Westerman on the issue of liability pursuant to Labor Law § 240 (1) are granted.
Labor Law § 200, Common–Law Negligence And Indemnity/Contribution
The court denies the motion of East Harlem and Westerman. Labor Law § 200 states, in applicable part, as follows:
“All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protections to such persons.”
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work (Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352 ; Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 877 ; Lombardi v. Stout, 80 NY2d 290, 294 ; Ferrero v. Best Modular Homes, Inc., 33 AD3d 847, 850 [2d Dept 2006]; Brown v. Brause Plaza, LLC, 19 AD3d 626, 628 [2d Dept 2005]; Everitt v. Nozkowski, 285 AD2d 442, 443 [2d Dept 2001]; Giambalvo v. Chemical Bank, 260 AD2d 432, 433 [2d Dept 1999] ). “It applies to owners, contractors, or their agents who exercise control or supervision over the work, or either created the allegedly dangerous condition or had actual or constructive notice of it” (Yong Ju Kim v. Herbert Constr. Co., 275 AD2d 709, 712 [2d Dept 2000], citing Russin v. Picciano & Son, 54 NY2d 311 ; Lombardi v. Stout, 80 NY2d 290; 294–295 ; Jehle v. Adams Hotel Assocs., 264 AD2d 354 [1st Dept 1999]; Raposo v. WAM Great Neck Assn. II, 251 AD2d 392 [2d Dept 1998]; Haghighi v. Bailer, 240 AD2d 368 [2d Dept 1997] ). Labor Law § 200 and common-law negligence liability “will attach when the injury sustained was a result of an actual dangerous condition, and then only if the defendant exercised supervisory control over the work performed on the premises or had notice of the dangerous condition which produced the injury” (Sprague v. Peckham Materials Corp., 240 AD2d 392, 394 [2d Dept 1997], citing Seaman v. Chance Co., 197 AD2d 612 [2d Dept 1993] ).
The court notes that this is not a case where “the injury arises out of a defect in the subcontractor's [Elite's] own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work” (Ortega v. Puccia, 57 AD3d 54, 62 , quoting Persichilli v. Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145  ). Instead, plaintiffs herein are claiming that the subject floor constituted a dangerous condition, and that East Harlem and Westerman had notice of the subject condition. Viewing the record in the light most favorable to opponents of summary judgment (see e.g. Fenton v. Ruchar, 300 AD2d 898, 899 [3d Dept 2000] ), at a minimum, an issue of fact exists as to whether East Harlem and Westerman had notice of the poorly-supported floor. As stated above, Westerman's principal was notified, days before the accident, that additional support for the subject floor was necessary; that constitutes actual notice. Also, East Harlem is a landowner, and its duty to keep its premises in a reasonably safe condition is nondelegable (Arabian v. Benenson, 284 AD2d 422 [2d Dept 2001]; Tagle v. Jakob, 97 NY2d 165  ). Since the alleged hazard existed for days prior to the accident, a trier of fact could reasonably find that East Harlem had notice of the hazard as well (see generally Gordon v. American Museum of Natural History, 67 NY2d 836, 837  ).
Lastly, a trier of fact could reasonably conclude that the failure of East Harlem and Westerman to strengthen the support of the subject floor constituted negligence. As such, the possibility of finding their negligence precludes any summary ruling on claims for indemnification or contribution (see e.g. Squires v. Marini Bldrs., 293 AD2d 808, 809 [3d Dept 2002], lv denied 99 NY2d 502  ). For these reasons, the motion of East Harlem and Westerman is denied.
As to that argument made by Elite that the Plaintiff's motion was defective because the evidence was not in admissible form. Specifically, in its Affirmation in Opposition, Elite points to the unsigned transcript of Plaintiff Leon and Plaintiff Curipoma. However, the Court finds that the transcripts are admissible given that they are not otherwise challenged as inaccurate and are either otherwise adopted as accurate by the party deponent or are otherwise certified. See David v. Chong Sun Lee, 106 AD3d 1044, 1045, 967 N.Y.S.2d 80, 82 [2nd Dept, 2013] Rodriguez v. Ryder Truck, Inc., 91 AD3d 935, 936, 937 N.Y.S.2d 602 [2nd Dept, 2012]. For example, while Elite is correct that the transcript for Plaintiff Luis Leon is unsigned in Plaintiff's motion, the accuracy of the transcript is not challenged and it is certified as Annexed as Exhibits “A” and “B” to Defendants East Harlem and Westerman's Affirmation in Opposition. The accuracy of the deposition of Plaintiff Curipoma is also not challenged and certified as Annexed as Exhibit “2” to Elite's own Affirmation in Opposition. The accuracy of the deposition of Fabio Bardone is also not challenged and certified as Annexed as Exhibit “Y” of the Motion by East Harlem and Westerman. What is more, the annexed deposition (Exhibit “F”) of Joseph Gullota of Westerman was submitted with the requisite correspondence pursuant to CPLR 3116. Even assuming, arguendo, that the remaining deposition transcripts, the accuracy of which Elite does not challenge, were found to be inadmissible, this would not otherwise render the Plaintiffs' motions defective, since they are not necessary for the Court to render a decision on the Plaintiff's motion.8
For the foregoing reasons, it is hereby
ORDERED that the motion of plaintiff Luis Leon (Motion Sequence # 9) for partial summary judgment against defendants/third-party plaintiffs East Harlem Council For Human Services, Inc. d/b/a Boriken Neighborhood Health Center and Westerman Construction Company, Inc. on the issue of liability pursuant to Labor Law § 240 (1) is granted; and it is further
ORDERED that the motion of plaintiff John Telmo Rodriguez Curipoma (Motion Sequence # 11) for partial summary judgment against defendants/third-party plaintiffs East Harlem Council For Human Services, Inc. d/b/a Boriken Neighborhood Health Center and Westerman Construction Company, Inc. on the issue of liability pursuant to Labor Law § 240 (1) is granted; and it is further
ORDERED that the motion of defendants/third-party plaintiffs East Harlem Council For Human Services, Inc. d/b/a Boriken Neighborhood Health Center and Westerman Construction Company, Inc. (Motion Sequence # 10) for summary judgment against plaintiff Luis Leon, plaintiff John Telmo Rodriguez Curipoma, and third-party defendant Elite Demolition Contracting Corp. is denied.
The foregoing constitutes the decision and order of the court.
1. Because of a distinction in how appellate courts apply Labor Law § 240 (1) to cases involving collapsed permanent floors to those involving collapsed platforms, the parties do not uniformly refer to the subject surface as a floor. However, as indicated later, the distinction is immaterial in this case. This decision and order will refer to the surface herein as a floor.
2. Although, some discovery allegedly remains outstanding and the trial is currently stayed.
3. Leon's motion papers specify his arguments; Curipoma's motion papers indicate that he adopts the arguments made by Leon.
4. By the terms of the applicable agreement between them, Westerman has already undertaken East Harlem's defense in the main action.
5. In the interest of clarity, Elite's arguments are against Leon's motion, but they apply equally to Curipoma's motion.
6. Elite actually argues against being required to indemnify East Harlem. However, the record indicates that Elite's contractual indemnification obligation runs to Westerman.
7. There is appellate authority for the propositions that “[t]he collapse of [a] floor constitute[s] a prima facie violation of Labor Law § 240 (1)” and that there is “no merit to the ․ contentions that Labor Law § 240 (1) is not implicated because the plaintiffs were injured as the result of the collapse of a permanent, rather than a temporary structure” (Richardson v. Matarese, 206 AD2d 353–354 [2d Dept 1994] ); this authority appears to be implicitly overruled.
8. In relation to Elite's argument that the Plaintiff failed to include a complete set of the pleadings, this Court otherwise has a complete copy of the pleadings and can thus properly determine the motions. cf. Alizio v. Perpignano, 225 AD2d 723 [2d Dept, 1996], see also CPLR 2214[c].
Carl J. Landicino, J.
Response sent, thank you
Docket No: 17407/12
Decided: January 25, 2018
Court: Supreme Court, Kings County, New York.
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