| Simon v Granite Bldg. 2, LLC |
| 2014 NY Slip Op 00983 [114 AD3d 749] |
| February 13, 2014 |
| Appellate Division, Second Department |
| Charles Simon, Respondent, v Granite Building 2,LLC, et al., Respondents-Appellants, and FXR Construction, Inc., Doing Business asDev Construction, et al., Appellants-Respondents, et al.,Defendants. |
—[*1] Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Georgia S. Alikakos ofcounsel), for appellant-respondent Canatal Industries, Inc. Gallo Vitucci & Klar, New York, N.Y. (Kimberly A. Ricciardi of counsel), forappellant-respondent MCLO Structural Steel Corp. Quirk and Bakalor, P.C. (Carol R. Finocchio, New York, N.Y., of counsel), forrespondents-appellants Granite Building 2, LLC, and Lalezarian Properties, LLC. Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Karen S. Drotzerof counsel), for respondents-appellants Kulka Construction Corp. and KulkaContracting, LLC. Rosenberg & Gluck, LLP, Holtsville, N.Y. (Michael V. Buffa of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries and wrongful death, (1) thedefendant Canatal Industries, Inc., appeals, as limited by its brief, from so much of anorder of the Supreme Court, Nassau County (Marber, J.), entered February 2, 2012, asgranted that branch of the plaintiff's motion which was for leave to amend the bill ofparticulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against it,denied those branches of its cross motion which were for summary judgment dismissingthe complaint insofar as asserted against it and dismissing the cross claims of thedefendants Granite Building 2, LLC, and Lalezarian Properties, LLC, insofar as assertedagainst it, and granted that branch of the cross motion of the defendants KulkaConstruction Corp. and Kulka Contracting, LLC, which was for leave to amend theiranswer to include cross claims against it for contractual indemnification and to recoverdamages for breach of contract for failure to procure insurance, (2) the defendant MCLOStructural Steel Corp. appeals, as limited by its brief, from so much of the same order asgranted that branch of the plaintiff's motion which was for leave to amend the bill ofparticulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against it,denied those branches of its motion which were for summary judgment dismissing thecomplaint insofar as asserted against it and dismissing the cross claims of the [*2]defendants Granite Building 2, LLC, and LalezarianProperties, LLC, for contractual indemnification and to recover damages for breach ofcontract for failure to procure insurance insofar as asserted against it, and granted thatbranch of the cross motion of the defendants Kulka Construction Corp. and KulkaContracting, LLC, which was for leave to amend their answer to include cross claimsagainst it for contractual indemnification and to recover damages for breach of contractfor failure to procure insurance, and (3) the defendant FXR Construction, Inc., doingbusiness as DEV Construction, appeals, as limited by its brief, from so much of the sameorder as granted that branch of the plaintiff's motion which was for leave to amend thebill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards againstit, denied those branches of its cross motion which were for summary judgmentdismissing the complaint insofar as asserted against it and dismissing the cross claims ofthe defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, for contractualindemnification insofar as asserted against it, and granted that branch of the cross motionof the defendants Kulka Construction Corp. and Kulka Contracting, LLC, which was forleave to amend their answer to include a cross claim against it for contractualindemnification, and the defendants Granite Building 2, LLC, and Lalezarian Properties,LLC, and the defendants Kulka Construction Corp. and Kulka Contracting, LLC,separately cross-appeal, as limited by their respective briefs, from so much of the sameorder as granted that branch of the plaintiff's motion which was for leave to amend thebill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards againsteach of them and denied their separate cross motions for summary judgment dismissingthe causes of action alleging violations of Labor Law §§ 240 (1) and 241 (6)insofar as asserted against each of them.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting that branch of the plaintiff's motion which was for leave to amend the bill ofparticulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against theappellants-respondents and the respondents-appellants, and substituting therefor aprovision denying that branch of the motion, (2) by deleting the provision thereofdenying those branches of the motion of the defendant MCLO Structural Steel Corp., andthe separate cross motions of the defendants Granite Building 2, LLC, and LalezarianProperties, LLC, the defendants Kulka Construction Corp. and Kulka Contracting, LLC,the defendant Canatal Industries, Inc., and the defendant FXR Construction, Inc., doingbusiness as DEV Construction, which were for summary judgment dismissing the causesof action alleging violations of Labor Law §§ 240 (1) and 241 (6) insofar asasserted against each of them, and substituting therefor a provision granting thosebranches of the motion and cross motions, (3) by deleting the provision thereof denyingthose branches of the motion of the defendant MCLO Structural Steel Corp. and theseparate cross motions of the defendants Canatal Industries, Inc., and FXR Construction,Inc., doing business as DEV Construction, which were for summary judgment dismissingthe causes of action alleging violations of Labor Law § 200 insofar as assertedagainst each of them, and substituting therefor a provision granting those branches of themotion and cross motions, (4) by deleting the provision thereof denying those branchesof the motion of the defendant MCLO Structural Steel Corp. and the cross motion of thedefendant Canatal Industries, Inc., which were for summary judgment dismissing thecauses of action alleging common-law negligence insofar as asserted against each ofthem, and substituting therefor a provision granting those branches of the motion andcross motions, (5) by deleting the provision thereof denying those branches of the motionof the defendant MCLO Structural Steel Corp. and the cross motion of the defendantCanatal Industries, Inc., which were for summary judgment dismissing the cross claimsof the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, forcontractual indemnification against each of them, and substituting therefor a provisiongranting those branches of the motion and cross motion, (6) by deleting the provisionthereof granting that branch of the cross motion of the defendants Kulka ConstructionCorp. and Kulka Contracting, LLC, which was for leave to amend their answer toinclude cross claims for contractual indemnification against the defendants CanatalIndustries, Inc., and MCLO Structural Steel Corp., and substituting therefor a provisiondenying that branch of the cross motion, and (7) by deleting the provision thereofdenying that branch of the cross motion of defendant Canatal Industries, Inc., which wasfor summary judgment dismissing the cross claim of the defendants Granite Building 2,LLC, and Lalezarian Properties, LLC, for contribution insofar as asserted against it, andsubstituting therefor a provision granting that branch of the cross motion; as so modified,the order is affirmed insofar as appealed from, without costs or disbursements.[*3]
The plaintiff and his wife (hereinafter thedecedent), were hired to hang wallpaper in a newly constructed office building that wasnearly complete, which was owned by the defendant Granite Building 2, LLC(hereinafter Granite). On the morning of the subject accident, February 13, 2008, the dayafter they were instructed to begin work in the building, the decedent drove her vehicle,with the plaintiff as a passenger, to the job site. When the plaintiff and the decedent wereunable to enter the building through the front entrance, the decedent drove the vehiclethrough an opening in a fence onto the upper deck of a parking garage that was stillunder construction adjacent to the building. When the vehicle was about halfwaybetween the opening gate in the fence and the leading edge of the parking deck, thedecedent informed the plaintiff that she could not stop. The vehicle slowly slid on iceuntil it reached the edge of the incomplete parking deck, broke through the steel cableguardrail system that was intended to protect individual workers, and fell approximately32 feet to the lower level of the garage. The plaintiff was injured when he jumped out ofthe vehicle before it fell, and the decedent fell with the vehicle and died at the scene.
The plaintiff subsequently commenced this action against, among others, Granite, thedefendant Lalezarian Properties, LLC (hereinafter Lalezarian), the property manager,Kulka Construction Corp. and Kulka Contracting, LLC (hereinafter together the Kulkadefendants), the construction manager, Canatal Industries, Inc. (hereinafter Canatal), thestructural steel subcontractor, MCLO Structural Steel Corp. (hereinafter MCLO), theinstaller of the structural steel, and FXR Construction, Inc., doing business as DEVConstruction (hereinafter FXR), the concrete subcontractor (hereinafter collectively theappellants), to recover damages, alleging violations of Labor Law §§ 200,240 (1) and 241 (6), as well as common-law negligence.
In an order entered February 2, 2012, the Supreme Court, inter alia, granted thatbranch of the plaintiff's motion which was for leave to amend the bill of particulars toallege violations of 12 NYCRR 23-4.2 and OSHA standards against the appellants,denied the appellants' motion and cross motions for summary judgment, and granted themotion of the Kulka defendants for leave to amend their answer to assert cross claimsagainst Canatal, MCLO, and FXR.
Initially, the contentions of Granite, Lalezarian, and the Kulka defendants that thesummary judgment motion and cross motions of MCLO, Canatal, and FXR wereuntimely made are academic in light of the fact that the Supreme Court vacated the noteof issue filed by the plaintiff and no party to this action has appealed from thatdetermination.
The Supreme Court should have granted those branches of the appellants' motion andcross motions which were for summary judgment dismissing the Labor Law§§ 240 (1) and 241 (6) causes of action insofar as asserted against each ofthem, and should have denied that branch of the plaintiff's motion which was for leave toamend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHAstandards against the appellants. The appellants made a prima facie showing ofentitlement to judgment as a matter of law on the Labor Law §§ 240 (1) and241 (6) causes of action. At the time of the accident, the plaintiff and his decedent werenot engaged in an enumerated activity protected under Labor Law § 240 (1)(see Jock v Fien, 80 NY2d 965, 967-968 [1992]). Further, the plaintiff cannotestablish a violation of Labor Law § 241 (6), since the plaintiff and his decedentwere not working in a construction area at the time of the accident, and the accident didnot occur in connection with construction, demolition, or excavation work beingperformed by them (see Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002];Gleason v Gottlieb, 35AD3d 355 [2006]; Peterkinv City of New York, 5 AD3d 652 [2004]). In opposition to the appellants'motion and cross motions, the plaintiff failed to raise a triable issue of fact. Wallpaperingin and of itself is not an enumerated activity under the Labor Law, and the plaintiff failedto allege sufficient facts to establish that the work that he and the decedent would haveperformed was part of the larger construction project (see Labor Law §240 [1]; Schroeder v KalenakPainting & Paperhanging, Inc., 7 NY3d 797 [2006]). Further, while we are notto "isolate the moment of injury" (Prats v Port Auth. of N.Y. & N.J., 100 NY2d878, 882 [2003]) in determining whether a plaintiff is engaged in an activity protectedunder Labor Law §§ 240 (1) and 241 (6), we conclude, under thecircumstances presented, that the accident occurred before the plaintiff and his decedenthad begun any work that conceivably could have been covered under these sections ofthe Labor Law (cf. Beehner vEckerd Corp., 3 NY3d 751, 752 [2004]; Ferenczi v Port Auth. of N.Y. & N.J., 34 AD3d 722[2006]). Moreover, since the Supreme Court should have directed dismissal of [*4]the plaintiff's Labor Law § 241 (6) causes of action,that branch of the plaintiff's motion which was for leave to amend the bill of particularsto allege violations of 12 NYCRR 23-4.2 and OSHA standards as additional predicatesto his Labor Law § 241 (6) causes of action also should have been denied.
The Supreme Court should have granted those branches of the motion of MCLO,and the cross motions of Canatal and FXR, which were for summary judgmentdismissing the Labor Law § 200 causes of action insofar as asserted against eachof them. These defendants established, prima facie, that they did not have authority tosupervise or control the area of the work site where the plaintiff was injured (see Martinez v City of NewYork, 73 AD3d 993, 998 [2010]; Ryder v Mount Loretto NursingHome, 290 AD2d 892, 894-895 [2002]). In opposition, the plaintiff failed to raise atriable issue of fact.
Canatal and MCLO also established their entitlement to judgment as a matter of lawdismissing the causes of action alleging common-law negligence insofar as assertedagainst each of them. A subcontractor "may be held liable for negligence where the workit performed created the condition that caused the plaintiff's injury even if it did notpossess any authority to supervise and control the plaintiff's work or work area" (Poracki v St. Mary's R.C.Church, 82 AD3d 1192, 1195 [2011] [internal quotation marks omitted]; see Erickson v Cross Ready Mix,Inc., 75 AD3d 519, 523 [2010]). An award of summary judgment in favor of asubcontractor on a negligence claim is improper "where the 'evidence raise[s] a triableissue of fact as to whether [the subcontractor's] employee created an unreasonable risk ofharm that was the proximate cause of the injured plaintiff's injuries' " (Erickson vCross Ready Mix, Inc., 75 AD3d at 523, quoting Marano v Commander Elec., Inc., 12 AD3d 571, 572-573[2004]). Here, Canatal and MCLO demonstrated, prima facie, that they did not create thedangerous condition that caused the accident, and the plaintiff failed to raise a triableissue of fact in opposition.
However, the Supreme Court properly denied that branch of FXR's cross motionwhich was for summary judgment dismissing the common-law negligence cause ofaction insofar as asserted against it. The evidence presented by FXR failed to establish,prima facie, that its workers did not create a dangerous condition when they removed aportion of the fence meant to close off access to the parking deck to allow for a deliverytruck to enter and then failed to replace the fence once the delivery was complete, or thatthis dangerous condition was not a proximate cause of the accident.
The Supreme Court should have granted those branches of the cross motion ofCanatal and the motion of MCLO which were for summary judgment dismissing thecross claims of Granite and Lalezarian for contractual indemnification insofar as assertedagainst each of them, and should have denied that branch of the Kulka defendants' crossmotion which was for leave to amend their answer to assert cross claims for contractualindemnification against Canatal and MCLO. Canatal and MCLO demonstrated theirprima facie entitlement to judgment as a matter of law by establishing that the accidentfell outside the scope of the indemnification clauses that were respectively applicable tothem (see Mikelatos vTheofilaktidis, 105 AD3d 822 [2013]; Perales v First Columbia 1200 NSR, LLC, 88 AD3d 1213,1214 [2011]; Kogan v North St.Community, LLC, 81 AD3d 429, 430 [2011]; see generally Brown v TwoExch. Plaza Partners, 76 NY2d 172, 178 [1990]). In response, Granite andLalezarian failed to raise a triable issue of fact. For similar reasons, that branch of theKulka defendants' cross motion which was for leave to amend their answer to assert crossclaims for contractual indemnification against Canatal and MCLO should have beendenied, as the amendment was " 'palpably insufficient . . . and. . . patently devoid of merit' " (Greco v Christoffersen, 70 AD3d 769, 770 [2010], quotingGitlin v Chirinkin, 60AD3d 901, 901-902 [2009]; see CPLR 3025 [b]; Ingrami v Rovner, 45 AD3d806, 808 [2007]). The Supreme Court also should have granted that branch ofCanatal's cross motion which was for summary judgment dismissing the cross claim ofGranite and Lalezarian for contribution insofar as asserted against it. Canataldemonstrated, prima facie, that the work it performed did not cause or contribute to thehappening of the accident (see492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991 [2013]). Inopposition, Granite and Lalezarian failed to raise a triable issue of fact.[*5]
The Supreme Court properly denied that branchof FXR's cross motion which was for summary judgment dismissing the cross claim ofGranite and Lalezarian for contractual indemnification insofar as asserted against it, andproperly granted that branch of the Kulka defendants' cross motion which was for leaveto amend their answer to assert a cross claim for contractual indemnification againstFXR. FXR failed to demonstrate its prima facie entitlement to judgment as a matter oflaw since it did not show that its negligence was not a proximate cause of the accident,and it did not, as a matter of law, demonstrate that the negligence of Granite, Lalezarian,or the Kulka defendants was a proximate cause of the accident. For the same reasons, theSupreme Court properly granted that branch of the Kulka defendants' cross motion whichwas for leave to amend their answer to assert a cross claim for contractualindemnification against FXR.
The Supreme Court properly denied that branch of Canatal's cross motion which wasfor summary judgment dismissing the cross claim of Granite and Lalezarian to recoverdamages for breach of contract for failure to procure insurance insofar as asserted againstit. Canatal failed to submit evidence demonstrating as a matter of law that it compliedwith the insurance provision of the applicable contract that required it to procureinsurance (see Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d738, 739 [2003]; see also Kinney v Lisk Co., 76 NY2d 215 [1990]; Keelan vSivan, 234 AD2d 516 [1996]; DiMuro v Town of Babylon, 210 AD2d 373[1994]).
The Supreme Court also properly denied that branch of MCLO's motion which wasfor summary judgment dismissing the cross claim of Granite and Lalezarian to recoverdamages for breach of contract for failure to procure insurance insofar as asserted againstit. MCLO failed to establish its entitlement to judgment as a matter of law bydemonstrating that Granite and Lalezarian were not third-party beneficiaries of theprovision requiring it procure insurance contained in its contract with Canatal, or that itcomplied with said provision.
The Supreme Court providently exercised its discretion in granting that branch of theKulka defendants' cross motion which was for leave to amend their answer to assert crossclaims to recover damages for breach of contract for failure to procure insurance againstCanatal and MCLO. The proposed amendments to the answer were not palpablyinsufficient or patently devoid of merit, and Canatal and MCLO made no showing ofprejudice or surprise (see CPLR 3025 [b]; Aurora Loan Servs., LLC v Thomas, 70 AD3d 986[2010]). Rivera, J.P., Balkin, Leventhal and Chambers, JJ., concur. [Prior CaseHistory: 2012 NY Slip Op 30270(U).]