Auriemma v. Biltmore Theatre, LLC

• Decision Date: 27 January 2011
• Court: New York Supreme Court — Appellate Division
• Parties: Jimmy AURIEMMA, et al., Plaintiffs-Respondents, v. BILTMORE THEATRE, LLC, et al., Defendants-Appellants. Sweet Construction Corp., et al., Third-Party Plaintiffs-Respondents-Appellants, v. Mass Electric Construction Company, Third-Party Defendant-Respondent/ Appellant-Respondent, St. Paul Fire and Marine Insurance Company, Third-Party Defendant-Appellant-Respondent, John Civetta & Sons, Inc., et al., Third-Party Defendants-Appellants-Respondents/Respondents. Sweet Construction of Long Island, LLC, et al., Second Third-Party Plaintiffs-Respondents-Appellants, v. Mass Electric Construction Company, Second Third-Party Defendant-Respondent/Appellant-Respondent, St. Paul Fire and Marine Insurance Company, Second Third-Party Defendant-Appellant-Respondent, John Civetta & Sons, Inc., et al., Second Third-Party Defendants-Appellants-Respondents/Respondents, United National Group, Second Third-Party Defendant.

917 N.Y.S.2d 130
82 A.D.3d 1

Jimmy AURIEMMA, et al., Plaintiffs-Respondents,
v.
BILTMORE THEATRE, LLC, et al., Defendants-Appellants.
Sweet Construction Corp., et al., Third-Party Plaintiffs-Respondents-Appellants,
v.
Mass Electric Construction Company, Third-Party Defendant-Respondent/ Appellant-Respondent,
St. Paul Fire and Marine Insurance Company, Third-Party Defendant-Appellant-Respondent,
John Civetta & Sons, Inc., et al., Third-Party Defendants-Appellants-Respondents/Respondents.
Sweet Construction of Long Island, LLC, et al., Second Third-Party Plaintiffs-Respondents-Appellants,
v.
Mass Electric Construction Company, Second Third-Party Defendant-Respondent/Appellant-Respondent,
St. Paul Fire and Marine Insurance Company, Second Third-Party Defendant-Appellant-Respondent,
John Civetta & Sons, Inc., et al., Second Third-Party Defendants-Appellants-Respondents/Respondents,
United National Group, Second Third-Party Defendant.

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

Jan. 27, 2011.

82 A.D.3d 132

Nicoletti Gonson Spinner & Owen LLP, New York (Laura M. Mattera of counsel), for John Civetta & Sons, Inc. and Diamond State Insurance Company, appellants-respondents/respondents.

82 A.D.3d 133

Devereaux Baumgarten, New York (Michael J. Devereaux of counsel), for respondents-appellants.

London Fischer LLP, New York (Brian A. Kalman and Anthony F. Tagliagambe of counsel), for Mass Electric Construction Company, respondent/respondent-appellant.

Lazare Potter & Giacovas LLP, New York (Jeremy M. Sokop and Andrew Premisler of counsel), for St. Paul Fire and Marine Insurance Company, appellant-respondent.

Alexander J. Wulwick, New York, for Auriemma respondents.

RICHARD T. ANDRIAS, J.P., JAMES M. CATTERSON, LELAND G. DeGRASSE, SALLIE MANZANET-DANIELS, JJ.

CATTERSON, J.

*5 In this personal injury action, the plaintiff asserts that a four-foot-deep open pit at his worksite was an elevation-related hazard for which the defendants failed to provide a safety device as required by Labor Law § 240(1). Because the defendants have not raised an issue of fact with regard to a violation of the statute or whether the plaintiff was the sole proximate cause of his own injuries, partial summary judgment is granted in favor of the plaintiff.

Jimmy Auriemma, the plaintiff in this case, is an electrician who was employed by Mass Electric Construction Company (hereinafter referred to as "Mass"), a subcontractor of Sweet Construction of Long Island, LLC (together with Sweet Construction Corp. collectively hereinafter referred to as "Sweet of LI"), for electrical work in connection with a renovation of the Biltmore Theater. His responsibilities included the installation of conduit pipes for electrical lines throughout the building. John Civetta & Sons, Inc. (hereinafter referred to as "Civetta") was hired by Sweet of LI for masonry and excavation work on the project.

Under their respective purchase order agreements, Mass and Civetta agreed to defend actions brought against the owner/net lessee, Manhattan Theater Club, Inc. (hereinafter referred to as "Manhattan"), and the purchaser/general contractor, Sweet of LI. Both subcontractors were also required to obtain insurance policies naming the owner Biltmore Theatre LLC (hereinafter referred to as "Biltmore") and Sweet of LI as additional insureds. The agreements also included indemnification clauses.

Civetta's policy, issued by Diamond State Insurance Company, covers additional insureds with respect to liability arising out of *6 Civetta's acts or omissions. Mass's policy, issued by St. Paul Fire and Marine Insurance Company, covers additional insureds for injury resulting from Mass's work or the insureds' general supervision of Mass's work. It does not cover bodily injury resulting from any act or failure to act of an additional insured, other than general supervision of Mass's work. The policy also states that it is excess over the insureds' primary or other available insurance.

The plaintiff was on the site for about a month before he was injured in the accident at issue. On the morning of October 1, 2002, the plaintiff's foreman directed him to go downstairs to the mechanical room to unlock tools and set up equipment for the day. The plaintiff testified that the staircase he would normally have used was blocked with debris and/or materials and the only route to the mechanical room was to go down into an excavated pit about four to six feet deep and climb out the other side. There was no way around the

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pit, and the only ladder he saw was at the bottom resting against the opposite wall.

In order to get into the pit, the plaintiff used a 10-foot-long wooden plank that had been placed with one edge at the top and the other at the bottom of the pit. He tested the plank by pushing down with one foot, and then, since it appeared stable, he started down. The plank, which was resting on dirt, shifted and he fell to the bottom of the pit, suffering injuries to his neck, back, and right shoulder.

The plaintiff's personal injury actions brought in September 2003 and October 2004 against Biltmore, Biltmore Tower LLC, Biltmore 47 Associates, LLC, ¹ Manhattan, and Sweet of LI alleged that defendants were negligent and, inter alia, violated Labor Law §§ 200, 240(1), and § 241(6) and regulations promulgated thereunder.

In July 2004, Sweet of LI and its insurer, Liberty International Underwriters (hereinafter referred to as "Liberty"), brought a third party action against Mass, St. Paul, Civetta, and Diamond. Approximately a year later, Sweet of LI and Liberty brought a second third-party action against Mass, St. Paul, Civetta, Diamond, and United National Group.²

After the parties answered, Civetta and Diamond moved for summary judgment dismissing the third-party actions against *7 them, which was opposed by Biltmore, Sweet of LI, Liberty, Manhattan, and Mass. Biltmore, Sweet of LI, Liberty, and Manhattan cross-moved for an order declaring, inter alia, that Civetta and Diamond had to defend and indemnify Sweet of LI.

On April 25, 2008, the motion court denied Civetta's motion for summary judgment dismissing the third-party action, on the grounds that there was a triable issue of fact with regard to Civetta's alleged negligence in placing the plank in the pit. The court also denied Biltmore, Sweet of LI, Liberty, and Manhattan's cross motion for summary judgment requesting a declaration that Civetta and Diamond were required to provide defense and contractual indemnification to Sweet of LI, as premature since there were outstanding issues of fact regarding Sweet of LI's negligence.

Biltmore, Manhattan, and Sweet of LI also moved for a declaration that, inter alia, Mass and St. Paul had to defend and indemnify them and reimburse them for attorneys' fees and costs. In opposition, Mass argued that the indemnification clause was unenforceable pursuant to General Obligations Law § 5-322.1, and that overall site safety was Sweet of LI's responsibility. St. Paul also opposed, arguing that its insurance was excess, that Biltmore and Manhattan were not entitled to seek summary judgment on unpleaded claims, and in any event, the motion was premature since Sweet of LI's liability had not yet been determined. In its order entered April 2, 2009, the court agreed, denying the motion.

Mass moved for summary judgment dismissing the third party claims against it on the grounds that § 240(1) did not apply and the plaintiff was the sole proximate cause of his own injuries, and that Mass was not negligent. On similar grounds, Sweet of LI, Biltmore, and Manhattan moved for summary judgment to dismiss the plaintiff's claims and all cross claims against them, and as to the

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Labor Law § 200 and negligence claims, that they did not control his work performance. In its order entered April 2, 2009, the court denied these motions, citing issues of fact.

St. Paul moved for summary judgment dismissing the first third-party action on the grounds that it provides only excess insurance coverage with respect to Sweet of LI and severing non-insurance claims from insurance coverage claims. The court granted St. Paul's motion to dismiss the first third-party action and to sever noninsurance issues, but in its order entered April 2, 2009, denied St. Paul's motion for a declaration that its coverage*8 was excess, reasoning that there must first be a finding of negligence and primary coverage by Diamond.

Defendants Civetta and Diamond appeal the denial of their motion for summary judgment dismissing the third-party actions against them. Defendants Biltmore, Manhattan, Sweet of LI, and Liberty cross-appeal the denial of their cross motions for summary judgment declaring that Civetta and Diamond are obligated to defend and indemnify Sweet of LI.

Defendants Biltmore, Manhattan, Sweet of LI and Liberty appeal the denial of their motions for summary judgment declaring that Mass and St. Paul are obligated to defend and indemnify them, and requesting dismissal of plaintiff's claims against them. Mass appeals the denial of its motion for summary judgment dismissing the third-party claims against it, and St. Paul appeals the denial of its motion for summary judgment seeking a declaration that the policy it issued is excess to any other coverage of Sweet of LI.

I. Labor Law § 240(1)

On appeal, defendants Biltmore, Manhattan, Sweet of LI, Liberty, and Mass assert that the plaintiff's Labor Law § 240(1) claim should be dismissed on the grounds that there is no recovery under § 240(1) when a plank is used as stairs or a passageway. Alternatively, they argue that even if § 240(1) is applicable, they are not liable because the plaintiff is the sole proximate cause of his own injury.

Although he did not dispute the motion court's earlier determination that issues of fact preclude summary disposition of his § 240(1) claim, on appeal the plaintiff requests partial summary judgment on the grounds that defendants have not...