| Gallagher v New York Post |
| 2008 NY Slip Op 08265 [55 AD3d 488] |
| October 30, 2008 |
| Appellate Division, First Department |
| Hugh Gallagher et al., Appellants-Appellants, v The NewYork Post et al., Respondents-Respondents. NYP Holdings, Inc., Third-PartyPlaintiff-Respondent-Appellant, v Francis A. Lee Co., Third-PartyDefendant-Appellant-Respondent. |
—[*1] Jones Hirsch Connors & Bull P.C., New York (Richard Imbrogno of counsel), for The NewYork Post and NYP Holdings, Inc., respondents-respondents/NYP Holdings, Inc.,respondent-appellant. French & Rafter, LLP, New York (Howard K. Fishman of counsel), for Francis A. Lee Co.,appellant-respondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 17, 2007,which, insofar as appealed from as limited by the briefs, upon reargument, adhered to its priororder denying plaintiffs' motion for summary judgment on the issue of liability on their LaborLaw § 240 (1) cause of action, and vacated its determination granting so much of the crossmotion of defendants the New York Post and NYP Holdings, Inc. (collectively NYP) forsummary judgment dismissing plaintiffs' Labor Law § 200 claim and reinstated the claim,and which denied the motion of third-party plaintiffs NYP for summary judgment on the firstcause of action in the third-party complaint for conditional contractual indemnification againstthird-party defendant Francis A. Lee Co. (Lee), and which denied Lee's motion to sever thethird-party action and its cross motion for summary judgment dismissing the third-partycomplaint, and which granted NYP and Lee's motions to strike the note of issue filed byplaintiffs, modified, on the law, NYP's cross motion for summary judgment granted to the extentof dismissing plaintiffs' claim pursuant to Labor Law § 200, NYP's motion for summaryjudgment granted on its first cause of action in the third-party complaint for conditionalcontractual indemnification, [*2]and Lee's cross motion forsummary judgment granted to the extent of dismissing the second cause of action in thethird-party complaint for breach of the contract to procure insurance, and otherwise affirmed,without costs. Appeal from order, same court and Justice, entered January 10, 2007, dismissed,without costs, as superseded by the appeal from the subsequent order.
Initially, we find that the motion court properly denied plaintiffs' motion for summaryjudgment on the Labor Law § 240 (1) cause of action, albeit for the reasons it initiallyadopted, and then rejected, on reargument. Labor Law § 240 (1), commonly referred to asthe Scaffold Law, provides, in pertinent part, that: "All contractors and owners and their agents. . . in the erection, demolition, repairing, altering, painting, cleaning or pointing ofa building or structure shall furnish or erect, or cause to be furnished or erected for theperformance 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 togive proper protection to a person so employed."
The Court of Appeals has long and repeatedly observed that the purpose of the statute is toprotect workers by placing the ultimate responsibility for safety practices where suchresponsibility belongs, on the owners and general contractors, instead of on the individualworkers who are not in a position to protect themselves (Martinez v City of New York,93 NY2d 322, 325-326 [1999]; Zimmer v Chemung County Performing Arts, 65 NY2d513, 520 [1985]; Koenig v Patrick Constr. Corp., 298 NY 313, 318 [1948]). Consistentwith this objective, the Court of Appeals has stated that the statute is to be construed as liberallyas necessary to accomplish the purpose for which it was framed (Panek v County ofAlbany, 99 NY2d 452, 457 [2003]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 559[1993]), but has also cautioned that not every worker who falls at a construction site, nor everyobject that falls on a worker, gives rise to an award of damages under Labor Law § 240 (1)(Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50 [2004]; Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d 280, 288 [2003]). Accordingly, it is still necessary for aplaintiff to demonstrate that the statute was violated, and that the violation proximately causedhis/her injuries (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004];Quattrocchi v F.J. Sciame Constr. Corp., 44 AD3d 377, 381 [2007], affd 11NY3d 757 [2008]). Thus, where a plaintiff's own actions are the sole proximate cause of theaccident, liability under Labor Law § 240 (1) does not attach (Robinson v East Med.Ctr., LP, 6 NY3d 550, 554 [2006]; Cahill v Triborough Bridge & Tunnel Auth., 4NY3d at 39). Moreover, if adequate safety devices are made available to the worker, but theworker does not use, or misuses, them, there is no liability (Robinson, 6 NY3d at554-555; Tonaj v ABC Carpet Co., Inc., 43 AD3d 337, 338 [2007]), and "[t]heburden of showing that an elevation-related risk exists, and that the owner or contractor did notprovide adequate safety devices falls upon the plaintiff" (Broggy v Rockefeller Group,Inc., 8 NY3d 675, 681 [2007]).
In this matter, we are compelled to disagree with the dissent's conclusion that "there is simplyno evidence of record that the plaintiff chose not to use an available safety device." JonathanSchreck, plaintiff's employer's assistant project manager, testified at a deposition conducted onJanuary 31, 2006, that: he had weekly meetings with the safety specialist hired to oversee theconstruction project in question; the ironworkers were required to use certain safety devices, suchas lanyards, cables or harnesses, when working near open areas; the devices were [*3]used to prevent injury in case a worker fell through an opening oroff an elevated surface; the safety devices were available on the job site the day plaintiff wasinjured; and a standing order was in place that all workers operating around any opening in thefloor were to be in a harness and tied off.
In our view, the foregoing testimony, which directly contradicts that of plaintiff, hiscoworker, and the project foreman, consists of more than "[m]ere generic statements of theavailability of safety devices"[FN*]and is sufficient, at this juncture, to raise issues of fact as to whether plaintiff was provided withadequate safety devices, was instructed to use them, and declined to do so, rendering his actions,or lack thereof, the sole proximate cause of his injuries. We are not convinced, however, thateven if plaintiff's grip was not up to full strength as a result of a prior unrelated injury, that suchweakness could be considered the sole proximate cause of the accident.
The court erred in reinstating the Labor Law § 200 claim, where the evidenceestablishes that NYP did not exercise the requisite degree of control over plaintiff's work thatwould give rise to liability (see Buckley v Columbia Grammar & Preparatory, 44 AD3d263, 272 [2007], lv denied 10 NY3d 710 [2008]). That NYP retained a project managerfor day-to-day monitoring of the project does not warrant a different conclusion (see Aragonv 233 W. 21st St., 201 AD2d 353, 354 [1994]).
NYP was entitled to summary judgment on the first cause of action in the third-partycomplaint for conditional contractual indemnification, since any negligence giving rise to theaccident, i.e., the purported failure to provide safety harnesses, arises out of the work performedby plaintiff's employer, Lee. Moreover, contrary to Lee's position, the antisubrogation rule is onlyapplicable to bar claims for indemnification to the extent of the limits of a common policy(see Federated Dept. Stores, Inc. v Twin City Fire Ins. Co., 28 AD3d 32, 40 [2006]). Byvirtue of the "other insurance" language of the umbrella policy obtained by Lee, the primarypolicy obtained by NYP is not a common policy, since Lee is not an insured under that policy.Thus, NYP's primary policy would attach prior to the umbrella policy, and accordingly, it isentitled to contractual indemnification for any damages awarded in excess of $1,000,000 andbelow $3,000,000.
The evidence further establishes that Lee did obtain the requisite insurance under its contractwith NYP and thus, the second cause of action in the third-party complaint for failure to procureinsurance should have been dismissed.
Inasmuch as this determination disposes of liability issues with regard to the third-partyaction, it does not appear that there should be any outstanding discovery. Any discoveryregarding damages has presumably been shared between the parties to the third-party action, whoare being provided a defense by the same carrier. Therefore, unless Lee can establish a need forfurther discovery, discovery should be closed, and severance of the third-party action isunnecessary. Concur—Tom, J.P., Friedman and Nardelli, JJ.[*4]
Catterson and Moskowitz, JJ., dissent in part in amemorandum by Catterson, J., as follows: The plaintiffs' motion for summary judgment on theLabor Law § 240 (1) cause of action should have been granted, since there are no triableissues regarding whether the requisite safety equipment was made available, and, if so, whetherthe injured plaintiff chose not to make use of it. (See Montgomery v Federal ExpressCorp., 4 NY3d 805, 806 [2005].) It is uncontested that while the plaintiff was cuttingthrough steel decking with a gas-powered circular cut-off saw, the saw became bound up in thedecking. At that point, the moment of inertia of the saw relative to the captured saw blade causedthe plaintiff to be thrown a distance of approximately 14 feet into an opening in the floorwhereupon he was injured. He testified that he was not provided with any safety devices. Thiswas corroborated by the affidavit of the plaintiff's coworker, the testimony of the plaintiff's ownforeman, and the employee sign-in sheet. The plaintiff made out a prima facie case that he wasnot supplied with safety devices adequate to prevent him from being propelled into an openhole.[FN*]The burden then shifts to the defendant to establish that, "there was no statutory violation andthat plaintiff's own acts and omissions were the sole cause of the accident." (Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003].)
We once again must observe that this is not merely a negligence action, that the Labor Lawand decisional authority impose a greater burden on the defendants, and that public policyprotecting workers requires that the statutes in question be construed liberally to afford theappropriate protections to the worker.
Thus, to defeat summary judgment in this case based on violations of the Labor Law, thedefendant would necessarily have to establish that the plaintiff "had adequate safety devicesavailable; that he knew both that they were available and that he was expected to use them; thathe chose for no good reason not to do so; and that had he not made that choice he would not havebeen injured." (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004].) Therecord fails to establish that there is an issue of material fact on several of the Cahill soleproximate cause factors.
Primarily, there is simply no evidence of record that the plaintiff chose not to use anavailable safety device. Indeed, every witness except Francis A. Lee Co.'s assistant projectmanager, Jonathan J. Schreck, testified that no safety devices were provided to the ironworkers.At no point does Schreck specifically state that the plaintiff was told to use certain safety devicesand that he declined and that he had "no good reason not to do so." Furthermore, the defendantspoint to no evidence of record that like the plaintiffs in Cahill and Blake, theplaintiff explicitly refused to use the available safety devices. (See Quattrocchi v F.J. SciameConstr. Corp., 44 AD3d 377, 381-382 [1st Dept 2007], affd 11 NY3d 757 [2008].)Indeed, Schreck testified [*5]that the plaintiff's foreman was thebest person to ask about the ironworkers' use of safety devices. The foreman stated that no suchdevices were provided to the plaintiff. Mere generic statements of the availability of safetydevices are insufficient to create an issue of fact that the plaintiff was the sole proximate cause ofhis injury.
Footnote *: Indeed, Mr. Schreck testified, ina manner indicating a good deal of familiarity with the safety devices, as to the various types ofsafety harnesses that were made available to the ironworkers, as well as the details of theiroperation, rendering his testimony somewhat more than generic statements.
Footnote *: It is noted, as the majority pointsout, that even if the plaintiff's grip was not up to full strength as a result of a prior unrelatedinjury, such weakness could not be considered the sole proximate cause of the accident.