| Urban v No. 5 Times Sq. Dev., LLC |
| 2009 NY Slip Op 03997 [62 AD3d 553] |
| May 21, 2009 |
| Appellate Division, First Department |
| Paul Urban, Respondent-Appellant, v No. 5 Times SquareDevelopment, LLC, et al., Respondents-Appellants, and AMEC Construction Management, Inc.,et al., Appellants-Respondents, et al., Defendants. (And OtherActions.) |
—[*1] Fabiani Cohen & Hall, LLP, New York (Lisa A. Sokoloff of counsel), for MaximumSecurity Products Corp., appellant/respondent. Arye, Lustig & Sassower, P.C., New York (Mitchell J. Sassower of counsel), for Paul Urban,respondent/appellant. Kaplan, von Ohlen & Massamillo, LLC, New York (Jennifer Huang of counsel), for No. 5Times Square Development, LLC and Boston Properties Limited Partnership,respondents/appellants.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered February 29,2008, that to the extent appealed from, as limited by the briefs, granted the motion of defendantsNo. 5 Times Square Development and Boston Properties (No. 5/Boston) for summary judgmentdismissing the common-law negligence and Labor Law §§ 200 and 241 (6) claimsagainst them, granted the motions of defendants AMEC Construction Management andMaximum Security Products doing business as Hillside Ironworks (Hillside) for summaryjudgment dismissing the Labor Law § 241 (6) claim against them but denied relief as tothe common-law negligence and section 200 claims against them, dismissed the cross claims byNo. 5/Boston against AMEC and Hillside for contractual and common-law indemnity, anddenied the motion by No. 5/Boston for summary judgment against AMEC and Hillside forbreach of contract to procure insurance, unanimously modified, on the law, summary judgmentgranted to Hillside dismissing all claims against it based on section 200, summary judgmentdenied to No. 5/Boston on the section 200 and common-law negligence claims, as well as ontheir contractual and [*2]common-law indemnification crossclaims, and otherwise affirmed, without costs.
Plaintiff, an electrician, was injured on September 17, 2002, after stepping into a gapbetween the entrance to a catwalk and the catwalk itself. Defendant Boston owned the buildingand defendant No. 5 developed it. Subcontractor Hillside designed, constructed and installed thecatwalk pursuant to a change order with general contractor/construction manager AMEC.Hillside finished its work in March or April 2002 and did not return to the job site thereafter.Plaintiff's employer (OHM Electric Corp.) contracted directly with No. 5, not with AMEC.Neither No. 5/Boston nor AMEC controlled plaintiff's work. About three weeks before hisaccident, plaintiff complained to his OHM foreman about the 10-to-12-inch gap, but no actionwas taken in response.I. Hillside
The court should have dismissed all claims against Hillside based on Labor Law §200. Hillside was neither an owner nor a general contractor (see Ryder v Mount LorettoNursing Home, 290 AD2d 892, 894 [2002]). Hillside was in an entirely different trade andhad left the job site months before plaintiff commenced work (see Kelarakos v Massapequa WaterDist., 38 AD3d 717, 718 [2007]). Hillside did have authority and control over theconstruction and installation of the catwalk, allegedly the instrumentality giving rise to plaintiff'sinjury. However, this is insufficient for a section 200 claim, although it is sufficient for acommon-law negligence claim (see e.g.Bell v Bengomo Realty, Inc., 36 AD3d 479, 481 [2007]).
The court properly denied summary judgment to Hillside on plaintiff's common-lawnegligence claim because there was a triable issue of fact as to whether Hillside had everinstalled a cover plate over the gap (seegenerally Urbina v 26 Ct. St. Assoc., LLC, 12 AD3d 225, 226 [2004]). Even thoughHillside's witness testified that Hillside had welded a plate to the catwalk, there was no platepresent at the time of plaintiff's accident. Hillside's witness admitted that it would have beenevident if there was a broken weld and plaintiff stated under oath that there was no indicationthat the plate had been welded and then removed. A representative of Boston stated under oaththat Boston never removed the plate. Further, there is no reason why anyone would haveremoved a cover plate had there been one.II. No. 5/Boston
The motion court should have denied No. 5/Boston's motion for summary judgment on theLabor Law § 200 claim. Plaintiff's injury did not arise from the method or manner thatOHM or plaintiff used to perform his work. Rather, his injury arose from a defective condition ofthe workplace because liability derives from the defective condition of the catwalk from whereplaintiff was attempting to work (seeHernandez v Columbus Ctr., LLC, 50 AD3d 597, 598 [2008] [opening in plank thatbuckled]). Therefore, on his Labor Law § 200 claim, plaintiff need not show that No.5/Boston, the owner and developer, controlled or directed the manner of his work (see e.g. Griffin v New York City Tr.Auth., 16 AD3d 202 [2005]; Murphy v Columbia Univ., 4 AD3d 200, 202 [2004]; Roppolov Mitsubishi Motor Sales of Am., 278 AD2d 149, 150 [2000]). However, for purposes of themotions at issue on appeal, plaintiff must demonstrate a triable issue of fact as to No. 5/Boston'sactual or constructive notice. There was no evidence that No. 5/Boston had actual notice of thegap between the building and the catwalk. By contrast, there is a triable issue of fact as towhether these defendants had constructive notice (see generally Griffin, 16 AD3d at203). If one views the evidence in the light most favorable to plaintiff, the gap was 10 to12inches wide and six feet, eight inches long, and it existed for five to six months before hisaccident. A trier of fact could therefore conclude that the property owner should have been [*3]aware of this potentially dangerous condition.
The motion court should also have denied No. 5/Boston's motion for summary judgmentdismissing the common-law negligence claims against them. "A landowner must act as areasonable [entity] in maintaining [its] property in a reasonably safe condition in view of all thecircumstances, including the likelihood of injury" (Basso v Miller, 40 NY2d 233, 241[1976], quoting Smith v Arbaugh's Rest., Inc., 469 F2d 97, 100 [DC Cir 1972], certdenied 412 US 939 [1973]). In addition, both an owner and a general contractor have a dutyto furnish a safe place to work (see e.g. Monroe v City of New York, 67 AD2d 89, 96[1979]; Employers Mut. Liab. Ins. Co. of Wis. v Di Cesare & Monaco Concrete Constr.Corp., 9 AD2d 379, 383 [1959]). "[T]he duty . . . to provide a safe place towork encompasses the duty to make reasonable inspections to detect unsafe conditions"(DaBolt v Bethlehem Steel Corp., 92 AD2d 70, 73 [1983], lv dismissed and appealdismissed 60 NY2d 701 [1983]; see also Employers Mut. Liab. Ins. Co. of Wis., 9AD2d at 382). "[W]hether the danger should have been apparent upon visual inspection" is a"question[ ] of fact bearing on [defendant's] liability" (DaBolt, 92 AD2d at 73).III. AMEC
The motion court was correct to deny AMEC's motion for summary judgment on the section200 and common-law negligence claims against it. Unlike injuries arising out of the method ofwork, where the injury arises from a condition of the workplace, it is "not necessary to prove [thegeneral contractor's] supervision and control over plaintiff" (Murphy, 4 AD3d at 202;see also Hernandez v Columbus Ctr., LLC, 50 AD3d at 598). Rather, where a plaintiff'sinjuries stem from a dangerous condition on the premises, "a general contractor may be liable incommon-law negligence and under Labor Law § 200 if it has control over the work siteand actual or constructive notice of the dangerous condition" (Keating v Nanuet Bd. of Educ., 40AD3d 706, 708 [2007]; see also Murphy, 4 AD3d at 201-202; Hernandez,50 AD3d at 598). In the case of a general contractor, this standard makes sense because a generalcontractor is unlikely to have notice without some control or supervision over the work site.
Here, there are issues of fact as to whether and to what extent AMEC controlled the worksite and whether AMEC knew or should have known about the unsafe condition of the work sitethat gave rise to plaintiff's injury. For example, AMEC's contract with No. 5/Boston placed theresponsibility for supervising the work site on AMEC. AMEC's project managers were expectedto and did walk through the catwalk. There is also evidence that AMEC had the responsibility tocoordinate the work of the various subcontractors on the site, was in charge of site safety and hada site safety director on the work site. These factors, coupled with the length of time the gapexisted before the accident, certainly are enough to raise an issue of fact whether AMEC had atleast constructive notice of the dangerous condition.IV. Labor Law § 241 (6)
The court properly dismissed plaintiff's Labor Law § 241 (6) claim in its entirety.Insofar as it was based on 12 NYCRR 23-1.7 (b) (1) (i), a 10-to-12-inch gap is not a "hazardousopening" for purposes of that regulation (see e.g. Messina v City of New York, 300AD2d 121, 123-124 [2002]). Nor is 12 NYCRR 23-1.7 (e) (1) applicable to this case. The gapbetween the building and the catwalk is a not a "condition" that "could cause tripping."V. Indemnification
The motion court dismissed No. 5/Boston's cross claims for contractual indemnification andcommon-law indemnification because it had dismissed the complaint against these entities in itsentirety. It therefore did not reach the question of whether and to what extent No. 5/Boston [*4]were entitled to summary judgment on their claims for contractualand common-law indemnity.
Here, because questions of fact exist as to whether No. 5/Boston had constructive noticeregarding the gap between the building and the catwalk, summary judgment to No. 5/Boston onindemnification cannot be granted at this juncture. It is also unclear whether Hillside and AMECwill ultimately be found negligent. Hillside's witness testified that it had installed a cover plate,while various witnesses testified that they did not notice any gap. Thus, factual issues as toconstructive notice and negligence exist that preclude summary judgment on contractualindemnification and common-law indemnification at this juncture.
The court properly denied No. 5/Boston's summary judgment motion on their cross claimsagainst AMEC and Hillside for breach of contract for failure to procure insurance. In theirmotion, No. 5/Boston did not mention failure to procure insurance. Therefore, it is hardlysurprising that AMEC failed to produce an insurance policy in opposition to the motion. As forHillside, it produced an insurance policy naming "Boston Properties, Inc. (Owner) and No. 5Times Square Development, LLC (Developer)" as insureds.
We have considered the parties' remaining contentions for affirmative relief and find themunavailing. Concur—Andrias, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.[See 2008 NY Slip Op 30551(U).]