| Allan v DHL Express (USA), Inc. |
| 2012 NY Slip Op 06904 [99 AD3d 828] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Reuben Allan, Respondent, v DHL Express (USA), Inc.,Appellant-Respondent, and 500 Lincoln, LLC, Respondent-Appellant. (And a Third-PartyAction.) |
—[*1] Barry, McTiernan & Moore, New York, N.Y. (Laurel A. Wedinger of counsel), forrespondent-appellant. John K. Avanzino, P.C. (Pollack Pollack Isaac & DeCicco, New York, N.Y. [Brian J. Isaacand Michael H. Zhu], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant DHL Express (USA),Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Schneier, J.), dated December 10, 2010, as denied those branches of its motion whichwere for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it and on its cross claim for common-law indemnification asserted against the defendant500 Lincoln, LLC, and granted the plaintiff's motion for summary judgment on the issue ofliability on the cause of action alleging violations of Labor Law § 240 (1) insofar asasserted against the defendant 500 Lincoln, LLC, and the defendant 500 Lincoln, LLC,cross-appeals, as limited by its brief, from so much of the same order as granted the plaintiff'smotion for summary judgment on the issue of liability on the cause of action alleging violationsof Labor Law § 240 (1) insofar as asserted against it.
Ordered that the appeal by the defendant DHL Express (USA), Inc., from so much of theorder as granted the plaintiff's motion for summary judgment on the issue of liability on the causeof action alleging violations of Labor Law § 240 (1) insofar as asserted against thedefendant 500 Lincoln, LLC, is dismissed, as the defendant DHL Express (USA), Inc., is notaggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144,156-157 [2010]); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof denyingthose branches of the motion of the defendant DHL Express (USA), Inc., which were forsummary judgment dismissing the complaint insofar as asserted against it and the cross claim forcommon-law indemnification asserted against it by the defendant 500 Lincoln, LLC, andsubstituting therefor provisions granting those branches of the motion of the defendant DHLExpress (USA), Inc., and (2) by deleting the provision thereof granting the plaintiff's motion forsummary judgment on the issue of liability on the cause of action alleging violations of LaborLaw § 240 (1) insofar as asserted against the defendant 500 Lincoln, LLC, and substitutingtherefor a provision denying the [*2]plaintiff's motion; as somodified, the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants, payable by the plaintiff.
The plaintiff allegedly was injured while performing construction work in a building ownedby the defendant 500 Lincoln, LLC (hereinafter 500 Lincoln), and leased to the defendant DHLExpress (USA), Inc. (hereinafter DHL). 500 Lincoln had hired the plaintiff's employer, StructuralPreservation Systems (hereinafter SPS), to perform structural repairs in the building. Theplaintiff testified at his deposition that he fell from the top of a scaffold, which wasapproximately seven or eight feet high, and that he had not been provided with a harness, alanyard, or an anchorage point for a lanyard. However, an SPS foreman and an SPS lead mantestified at their respective depositions that the plaintiff fell while climbing down the side of thescaffold, instead of using a ladder that had been set up adjacent to the scaffold.
The plaintiff commenced this action against DHL and 500 Lincoln, alleging common-lawnegligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). In theirrespective answers, DHL and 500 Lincoln asserted cross claims against each other, inter alia, forcommon-law and contractual indemnification. After discovery, the plaintiff moved for summaryjudgment on the issue of liability on the cause of action alleging violations of Labor Law §240 (1) insofar as asserted against 500 Lincoln, and DHL moved for summary judgment, amongother things, dismissing the complaint insofar as asserted against it and 500 Lincoln's crossclaims for common-law and contractual indemnification, and on its cross claim against 500Lincoln for common-law indemnification. The Supreme Court, inter alia, granted the plaintiff'smotion and denied DHL's motion.
In pertinent part, Labor Law § 240 (1) imposes a nondelegable duty on "[a]llcontractors and owners and their agents . . . in the . . . repairing. . . of a building or structure" who do not "furnish or erect, or cause to be furnishedor erected for the performance of such labor, scaffolding" that does not "give proper protection toa person so employed" (Labor Law § 240 [1]; see Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d 494, 499-500 [1993]). Labor Law § 241 (6) holds "owners andcontractors and their agents" liable for failing to comply with rules promulgated by theCommissioner of the Department of Labor (Labor Law § 241 [6]; see Misicki v Caradonna, 12 NY3d511, 515 [2009]; Industrial Code [12 NYCRR ch I, subch A]). With respect to both statutes,the term "owner" encompasses a "person who has an interest in the property and who fulfilled therole of owner by contracting to have work performed for his [or her] benefit" (Copertino vWard, 100 AD2d 565, 566 [1984]; see Kwang Ho Kim v D & W Shin Realty Corp.,47 AD3d 616, 618 [2008]). Notably, "owner" includes a lessee who has "the right or authority tocontrol the work site, even if the lessee did not hire the general contractor" (Zaher v Shopwell, Inc., 18 AD3d339, 340 [2005]).
In support of its motion, DHL submitted the contract between 500 Lincoln and SPS, as wellas the deposition testimony of the plaintiff, SPS foreman Fernando Perez, SPS laborer HenryRivera, SPS mason Marcello Ortega, SPS lead man Dorant Smith, 500 Lincoln project managerStuart Keane, SPS division manager Stephen Camisa, and DHL regional facilities manager KenLee, which collectively demonstrated that neither DHL nor the engineering company, ParagonEngineering (hereinafter Paragon), which DHL had hired to observe and monitor the workperformed by SPS, directed, controlled, or supervised SPS's work or had the right or authority todo so. Accordingly, DHL established, prima facie, its entitlement to judgment as a matter of lawdismissing the cause of action alleging violations of Labor Law § 240 (1) insofar asasserted against it on the ground that it is not an owner within the meaning of that statute (seeKwang Ho Kim v D & W Shin Realty Corp., 47 AD3d at 618; Zaher v Shopwell,Inc., 18 AD3d at 340; Copertino v Ward, 100 AD2d at 566).
In opposition to that branch of DHL's motion, the plaintiff failed to raise a triable issue offact. The plaintiff argues that, through Paragon, DHL had the authority to control the work site,and the record contains an email from Paragon to DHL stating that Paragon was "monitoring andproviding direction (to the extent possible) of SPS spot repair activities." However, this emaildemonstrates only that Paragon had general authority to inspect SPS's work and make [*3]recommendations about SPS's work activities, and thus fails to raisea triable issue of fact as to whether DHL had authority to control the work site (see Santos vAmerican Museum of Natural History, 187 AD2d 420, 421-422 [1992]). Accordingly, theSupreme Court should have granted that branch of DHL's motion which was for summaryjudgment dismissing the cause of action alleging violations of Labor Law § 240 (1) insofaras asserted against it.
In addition, the Supreme Court should have granted that branch of DHL's motion which wasfor summary judgment dismissing the cause of action alleging violations of Labor Law §241 (6) insofar as asserted against it. That cause of action was premised, inter alia, upon allegedviolations of 12 NYCRR 23-1.7 (a) (2) and (b) (1) and 23-5.1 (f) and (h). As DHL correctlycontends, subdivision (a) (2) of 12 NYCRR 23-1.7 is not applicable because it does not apply toareas where employees are "required to work" (see Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136, 1138[2005]). Further, 12 NYCRR 23-1.7 (b) (1) is not applicable, "as that regulation applies to safetydevices for hazardous openings, and not to an elevated hazard" (Forschner v Jucca Co., 63 AD3d996, 999 [2009]; see 12 NYCRR 23-1.7 [b] [1]). Subdivision (h) of 12 NYCRR23-5.1, which requires that "[e]very scaffold shall be erected and removed under the supervisionof a designated person," has no application under the facts of this case, since the scaffold was notbeing erected or removed at the time of the plaintiff's accident (12 NYCRR 23-5.1 [h]).Additionally, 12 NYCRR 23-5.1 (f) lacks the specificity required to support a cause of actionalleging violations of Labor Law § 241 (6) (see Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 1140 [2004]).Moreover, for the reasons stated above with respect to the cause of action alleging violations ofLabor Law § 240 (1), DHL was entitled to summary judgment dismissing the cause ofaction alleging violations of Labor Law § 241 (6) insofar as asserted against it on theground that it is not an "owner" within the meaning of that statute (see Kwang Ho Kim v D &W Shin Realty Corp., 47 AD3d at 618; Zaher v Shopwell, Inc., 18 AD3d at 340;Copertino v Ward, 100 AD2d at 566).
As to Labor Law § 200 and common-law negligence, "Labor Law § 200 (1) is acodification of the common-law duty of an owner or general contractor to provide workers with asafe place to work" (Ortega vPuccia, 57 AD3d 54, 60 [2008]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d at 505). Where, as here, a plaintiff's claim arises out of alleged defects or dangers in themethods or materials of the work, to prevail on a Labor Law § 200 cause of action, theplaintiff must show that the defendant "had the authority to supervise or control the performanceof the work" (Ortega v Puccia, 57 AD3d at 61; see Pilato v 866 U.N. Plaza Assoc., LLC, 77 AD3d 644, 646[2010]). "A defendant has the authority to supervise or control the work for purposes of LaborLaw § 200 when that defendant bears the responsibility for the manner in which the workis performed" (Ortega v Puccia, 57 AD3d at 62). "[T]he right to generally supervise thework, stop the contractor's work if a safety violation is noted, or to ensure compliance with safetyregulations and contract specifications is insufficient to impose liability under Labor Law §200 or for common-law negligence" (Austin v Consolidated Edison, Inc., 79 AD3d 682, 684 [2010][internal quotation marks omitted]; seeCambizaca v New York City Tr. Auth., 57 AD3d 701 [2008]).
Here, DHL established its prima facie entitlement to judgment as a matter of law dismissingthe causes of action alleging violations of Labor Law § 200 and common-law negligenceinsofar as asserted against it through the aforementioned deposition testimony, whichdemonstrated that it did not have the authority to supervise or control the manner in which SPSperformed its work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877[1993]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]; Pilato v 866U.N. Plaza Assoc., LLC, 77 AD3d at 646; Jenkins v Walter Realty, Inc., 71 AD3d 954 [2010]; Enos v Werlatone, Inc., 68 AD3d712 [2009]; Ortega v Puccia, 57 AD3d at 62-63).
The plaintiff did not oppose those branches of DHL's motion, and thus, he failed to raise atriable issue of fact with respect to those causes of action insofar as asserted against DHL (see Pagano v Town of Smithtown, 74AD3d 1304, 1305 [2010]). Accordingly, the Supreme Court should have granted thosebranches of DHL's motion which were for summary judgment dismissing the causes of actionalleging violations of Labor Law § 200 and common-law negligence insofar as assertedagainst it.
The Supreme Court also should have granted that branch of DHL's motion which was [*4]for summary judgment dismissing 500 Lincoln's cross claim forcommon-law indemnification, as DHL established, prima facie, that it did not exercise actualsupervision or control over the plaintiff's work (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 378 [2011]; Arteaga v 231/249 W 39 St. Corp., 45AD3d 320 [2007]), and, in opposition, 500 Lincoln failed to raise a triable issue of fact.
The Supreme Court properly denied that branch of DHL's motion which was for summaryjudgment on its cross claim for common-law indemnification asserted against 500 Lincoln.Although DHL's liability, if any, is purely vicarious, it failed to make a prima facie showing that500 Lincoln was either negligent or exercised actual supervision and control over the plaintiff'swork (see McCarthy v Turner Constr., Inc., 17 NY3d at 377-378; Arteaga v 231/249W 39 St. Corp., 45 AD3d at 321; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 685 [2005];cf. Morin v Hamlet Golf Dev. Corp., 270 AD2d 321 [2000]).
The Supreme Court erred in granting the plaintiff's motion for summary judgment on theissue of liability on the cause of action alleging violations of Labor Law § 240 (1) insofaras asserted against 500 Lincoln. To prevail on a Labor Law § 240 (1) cause of action, aplaintiff must establish that the statute was violated and that the violation was a proximate causeof his or her injuries (see Berg v AlbanyLadder Co., Inc., 10 NY3d 902, 904 [2008]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287[2003]; Martinez v Ashley Apts Co.,LLC, 80 AD3d 734, 735 [2011]). "[W]here a plaintiff's own actions are the soleproximate cause of the accident, there can be no liability" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39[2004]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of lawthrough his deposition testimony that he fell off the scaffold because a temporary ceilingcollapsed, and that he was not provided with an adequate protective device that would haveprevented him from falling. In opposition, however, 500 Lincoln raised a triable issue of fact,through the deposition testimony of Smith and Perez, as to whether the plaintiff was providedwith an adequate protective device, including a harness that was secured by a lanyard with anappropriate anchor. Additionally, that deposition testimony raised a triable issue of fact as towhether the plaintiff's own actions were the sole proximate cause of the accident because heimproperly climbed down the scaffold, rather than using an A-frame ladder secured to thescaffold that workers had been instructed to use to get on and off the scaffold, and, in so doing,loosened a pole shore that secured the temporary ceiling, causing him to fall. Accordingly, theSupreme Court should have denied the plaintiff's motion for summary judgment on the issue ofliability on the cause of action alleging violations of Labor Law § 240 (1) insofar asasserted against 500 Lincoln (seeWelsch v Maimonides Med. Ctr., 80 AD3d 755, 756 [2011]; Delahaye v Saint Anns School, 40AD3d 679, 682 [2007]; Florio vLLP Realty Corp., 38 AD3d 829, 830 [2007]).
The parties' remaining contentions are without merit or do not warrant additional relief.Rivera, J.P., Angiolillo, Belen and Roman, JJ., concur.