Marquez v. L & M Dev. Partners, Inc.

• Decision Date: 27 July 2016
• Citation: 2016 N.Y. Slip Op. 05631,141 A.D.3d 694,35 N.Y.S.3d 700
• Parties: Victor MARQUEZ, plaintiff-respondent, v. L & M DEVELOPMENT PARTNERS, INC., defendant, 11 Broadway Owner, LLC, et al., defendants third-party plaintiffs, Pro Safety Services, LLC, defendant third-party defendant/second third-party plaintiff-appellant, 11 Broadway Affordable Residential, LLC, et al., defendants second third-party defendants-respondents.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 694

35 N.Y.S.3d 700

2016 N.Y. Slip Op. 05631

Victor MARQUEZ, plaintiff-respondent,

v. L & M DEVELOPMENT PARTNERS, INC., defendant,11 Broadway Owner, LLC, et al., defendants third-party plaintiffs,Pro Safety Services, LLC, defendant third-party defendant/second third-party plaintiff-appellant,11 Broadway Affordable Residential, LLC, et al., defendants second third-party defendants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

July 27, 2016.

Rafferty & Redlisky, LLP, Pelham, N.Y. (Robert G. Rafferty of counsel), for defendant third-party defendant/second third-party plaintiff-appellant.

Stanton Guzman & Miller, Franklin Square, N.Y. (Stacey Rinaldi Guzman of counsel), for plaintiff-respondent.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for defendants third-party plaintiffs and defendants second third-party defendants-respondents.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.

In a consolidated action to recover damages for personal injuries, the defendant third-party defendant/second third-party plaintiff, Pro Safety Services, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Connolly, J.), dated May 1, 2014, as denied those branches of its motion which were for summary judgment (a) dismissing the plaintiff's causes of action alleging violations of Labor Law §§ 200

, 240(1), and 241(6), and common-law negligence insofar as asserted against it, (b) dismissing the cross claims, counterclaims, and third-party causes of action asserted against it for contribution, common-law indemnification, and contractual indemnification, and on its cross claims and second third-party causes of action against the defendants second-third party defendants, 11 Broadway Affordable Residential, LLC, and 11 Broadway Residential, LLC, for contribution and common-law indemnification, and to recover damages for the failure of the defendants second-third party defendants to use commercially reasonable efforts to cause the defendant third-party plaintiff Congress Builders and its subcontractors to name Pro Safety Services, LLC, as an additional insured on certain liability insurance policies.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the appellant's motion which were for summary judgment dismissing the plaintiff's causes of action alleging violations of Labor Law §§ 200

, 240(1), and 241(6), and common-law negligence insofar as asserted against it, and dismissing the cross claims, counterclaims, and third-party causes of action asserted against it for contribution and common-law indemnification, and substituting therefor provisions granting those branches of the motion, and (2) by deleting the provisions thereof denying those branches of the appellant's motion which were for summary judgment on its cross claim and second third-party cause of action against the defendants second third-party defendants, 11 Broadway Affordable Residential, LLC, and 11 Broadway Residential, LLC, for contribution and common-law indemnification, and substituting therefor provisions denying those branches of the motion as academic; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The complaint alleges that the plaintiff was injured while working as a laborer for a nonparty subcontractor at a construction site owned, developed, or managed by 11 Broadway Owner, LLC, 11 Broadway HIP LIB Housing Develop (hereinafter 11 Broadway Develop), 11 Broadway Affordable Residential, LLC (hereinafter 11 Broadway Affordable), and 11 Broadway Residential, LLC (hereinafter 11 Broadway Residential) (hereinafter collectively the owners). The plaintiff allegedly was injured when he fell one story through a plywood-covered hole in the floor of a ramp. The general contractor at the construction site was Congress Builders. 11 Broadway Affordable and 11 Broadway Residential had entered into a contract with the appellant, Pro Safety Services, LLC (hereinafter PSS), wherein PSS agreed to provide “loss control and safety consulting services” at the work site (hereinafter the Consultant Agreement).

The plaintiff commenced two actions, which were later consolidated, against the owners, Congress Builders, and PSS, alleging, inter alia, violations of Labor Law §§ 200

, 240(1), and 241(6), and common-law negligence. PSS, and 11 Broadway Affordable and 11 Broadway Residential, asserted cross claims against each other for, among other things, indemnification and contribution. 11 Broadway Owner, 11 Broadway Develop, and Congress Builders commenced a third-party action against PSS for, inter alia, contribution, common-law indemnification, and contractual indemnification. PSS then commenced a second-third party action against 11 Broadway Affordable and 11 Broadway Residential for, among other things, contribution and common-law indemnification, and the failure to use commercially reasonable efforts to cause Congress Builders and its subcontractors to name PSS as an additional insured on their liability insurance policies. 11 Broadway Affordable and 11 Broadway Residential counterclaimed in the second third-party action for, inter alia, contribution, common-law indemnification, and contractual indemnification against PSS.

PSS moved, inter alia, for summary judgment dismissing the plaintiff's causes of action alleging violations of Labor Law §§ 200

, 240(1), and 241(6), and common-law negligence insofar as asserted against it, dismissing the cross claims, counterclaims, and the third-party causes of action asserted against it for contribution, common-law indemnification, and contractual indemnification, and for summary judgment on its cross claims and second third-party causes of action against 11 Broadway Affordable and 11 Broadway Residential for contribution and common-law indemnification, and to recover damages for the failure of 11 Broadway Affordable and 11 Broadway Residential to use commercially reasonable efforts to cause Congress Builders and its subcontractors to name PSS as an additional insured. PSS asserted that it was not liable under Labor Law §§ 200, 240(1), and 241(6), or for common-law negligence, because it was not an owner or a general contractor, or a statutory agent, of the owners or Congress Builders. PSS also argued that it was entitled to summary judgment dismissing the third-party causes of action, cross claims, and counterclaims asserted against it for indemnification and contribution, and that it was entitled to summary judgment on its cross claim and the second third-party cause of action for common-law indemnification and contribution, because it demonstrated that it was not negligent in connection with the plaintiff's accident, and that it did not have the authority to supervise, control, or direct the plaintiff's work. The Supreme Court denied the aforementioned branches of PSS's motion. PSS appeals.

To hold PSS liable as an agent of the owners or Congress Builders for violations of Labor Law §§ 240(1)

and 241(6), there must be a showing that PSS had the authority to supervise and control the work (see Van Blerkom v. American Painting, LLC, 120 A.D.3d 660, 661, 992 N.Y.S.2d 52

; Bakhtadze v. Riddle, 56 A.D.3d 589, 590, 868 N.Y.S.2d 684 ; Torres v. LPE Land Dev. & Constr., Inc., 54 A.D.3d 668, 863 N.Y.S.2d 477 ). The determinative factor is whether the party had “the right to exercise control over the work, not whether it actually exercised that right” (Williams v. Dover Home Improvement, 276 A.D.2d 626, 626, 714 N.Y.S.2d 318 ; see

Samaroo v. Patmos Fifth Real Estate, Inc., 102 A.D.3d 944, 946, 959 N.Y.S.2d 229 ). Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent of the owner or general contractor (see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 864, 798 N.Y.S.2d 351, 831 N.E.2d 408

; Bakhtadze v. Riddle, 56 A.D.3d at 590, 868 N.Y.S.2d 684 ).

PSS made a prima facie showing of its entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1)

and 241(6) causes of action insofar as asserted against it. PSS submitted evidence demonstrating that its role at the work site was only one of general supervision, and that it did not have the authority to control the work performed or the safety precautions taken by the general contractor and the plaintiff's employer, which is insufficient to impose liability on a safety consultant under the Labor Law (see

Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 148, 950 N.Y.S.2d 35 ; Linkowski v. City of New York, 33 A.D.3d 971, 975, 824 N.Y.S.2d 109 ; Smith v. McClier Corp., 22 A.D.3d 369, 371, 802 N.Y.S.2d 441 ). Under the Consultant Agreement, “PSS's loss control services [were] advisory only.” The Consultant Agreement provided that “consultation, including any inspection or representational activity by PSS does not constitute any delegation to PSS or assumption by PSS of the direct and primary duty of [the owners] or any corporation or agency associations affiliated with [the owners] to be in compliance with any regulatory agency, law and/or regulation.” The Consultant Agreement further stated that “PSS assumes no responsibility for management or control of the safety practices of [the owners] or its contractors nor for the implementation of proposed recommendations.” Lastly, the owners acknowledged in the Consultant Agreement “that PSS has no control or supervision over the means or methods utilized by [the owners] or any subcontractors, any general contractor, any construction manager or owner at the work site to maintain a safe work site or to correct any safety hazards.” The deposition testimony submitted in support of PSS's motion also demonstrated that PSS did not assume responsibility for the plaintiff's work,...