Barron v. The City of New York

• Decision Date: 06 June 2022
• Docket Number: Index No. 13863/2015
• Citation: 2022 NY Slip Op 31794 (U)
• Parties: Don Barron, Plaintiff, v. The City of New York, New York City Department of Environmental Protection, Bureau of Waste Water Treatment, and Northeast Remsco Construction, Inc., Defendants, Northeast Remsco Construction, Inc., Third-Party Plaintiff, v. Severn Trent Environmental Services, Inc., Third-Party Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 31794(U)

Don Barron, Plaintiff,
v.
The City of New York, New York City Department of Environmental Protection, Bureau of Waste Water Treatment, and Northeast Remsco Construction, Inc., Defendants,

Northeast Remsco Construction, Inc., Third-Party Plaintiff,
v.
Severn Trent Environmental Services, Inc., Third-Party Defendant.

Index No. 13863/2015

Supreme Court, Kings County

June 6, 2022

Unpublished Opinion

At an IAS Term, Part 35 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 6th day of June, 2022.

PRESENT: HON. KAREN B. ROTHENBERG, Justice.

HON. KAREN B. ROTHENBERG, J.S.C.

The following e-filed papers read herein: NYSEF Doc. Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and

Affidavits (Affirmations) Annexed 6-7, 19-20, 27-28

Opposing Affidavits (Affirmations) 44, 46, 48, 50

Affidavits/ Affirmations in Reply 52, 54, 56

Other Papers

1

Upon the foregoing papers, third-party defendant Severn Trent Environmental Services, Inc. (Trent) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241-a and 241 (6) causes of action and dismissing the third-party complaint as against it (M.S. 9). Defendant the City of New York (City), New York City Department of Environmental Protection, Bureau of Waste Water Treatment (DEP), and defendant/third-party plaintiff Northeast Remsco Construction, Inc. (Remsco) (collectively referred to as defendants) move, pursuant to CPLR 3212, for an order granting them summary judgment dismissing the complaint, or, in the alternative, for an order granting Remsco summary judgment in its favor on its contractual indemnification claim against Trent (M.S. 10).

Trent's motion (M.S. 9) is granted to the extent that: (1) plaintiff's Labor Law §§ 240 (1), 241-a and 241 (6) causes of action are dismissed; and (2) Remsco's third-party claims for contribution, common-law indemnification, and breach of the contract to procure insurance are dismissed. Trent's motion is otherwise denied.

Defendants' motion (M.S. 10) is granted to the extent that the complaint is dismissed.

BACKGROUND

In this action, premised on common-law negligence and violations of Labor Law §§ 200, 240 (1), 241-a and 241 (6), plaintiff alleges that he suffered injuries on March 15, 2015, when he fell approximately three to four feet to the ground from a wall that

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bordered the edge of the Gowanus Canal. In or around 2009, the City, through the DEP,^[1] hired Remsco as a prime contractor to act as general contractor for a portion of the work involved in the rehabilitation of the Gowanus Canal's flushing tunnel and the reconstruction of the Gowanus Waste Water Pumping Station, which is located at the end of the Gowanus Canal. This contract required that Remsco operate the water flushing and pumping services during the course of the project. These water flushing and pumping services were initially performed at temporary interim facilities and later, at the permanent facility once it became operational. Remsco, in turn, hired Trent to monitor and inspect the pumping and flushing equipment and to perform scheduled preventative maintenance of the equipment during the course of the project. Notably, Trent's monitoring and preventative maintenance obligations did not commence until after Remsco had installed the equipment and checked to ensure that it was operable and working correctly.

Plaintiff was employed by Trent to monitor the equipment. Plaintiff concedes that he performed no construction himself, and that, other than assisting with the preventative maintenance of a pump on one occasion, his tasks were primarily limited to observing and recording meter readings from the pumps and other equipment that were in operation. If this equipment showed any possibility that wastewater was overflowing into the Canal as a result of rain or melting snow, plaintiff would also be required to go outside and look into the Canal to observe if there was, in fact, sewage overflowing into the canal.

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It is undisputed that on the date of the accident, a significant amount of snow fell, and that Remsco halted its construction activities during that morning. According to plaintiff's deposition testimony, at around 12:00 p.m., after notification from the monitors that there was a possible overflow of wastewater into the canal, he went outside to check to see if he could view any overflow. When he went outside, it was snowing heavily. Plaintiff asserts that he walked up to the wall surrounding the canal, climbed up onto it to view the overflow, and that, when he started to step down with one foot, he fell to the ground and landed on his side.

According to plaintiff, because the ground in the area of the wall had potholes and other obstructions, he regularly used the wall as a sidewalk. Plaintiff, however, does not know if anyone ever observed him walking on the wall. In contrast, Dan Giganto, Remsco's project manager, testified that he had never observed anyone walking on the wall during the project, and that there was no reason for a Trent worker to climb up onto the wall to view the overflow given that the wall was only two and one-half feet to three feet high. As such, Giganto also asserted that there was no reason for Remsco, which had assumed the responsibility to clear snow and ice from walkways and roadways at the project site, to clear snow and ice from the top of the wall. Sean Brennan, employed by non-party Hazen & Sawyer as the resident engineer for the project, similarly testified at his deposition that he had never seen anyone from Trent walking on the wall, and that there was no reason for a Trent employee to walk on the wall, since, given the height of the wall, the same view of the canal could be obtained from the ground. Likewise, Robert Crisdell, one of plaintiff's direct supervisors, testified at his deposition that he was

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not aware of anyone standing on the wall prior to plaintiff's accident, and that there was no reason to stand on the wall to view the overflow because there were many locations located on the ground from which the overflow could be readily observed.

DISCUSSION

Labor Law §§ 240 (1), 241 (6), and 241-a

Labor Law § 240 (1) imposes absolute liability on owners and contractors or their agents when their failure to protect workers employed on a construction site from the risks associated with elevation differentials proximately causes injury to a worker (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). Trent and defendants assert that plaintiff is not entitled to the protection afforded to workers under Labor Law § 240 (1) because he was not engaged in any of the enumerated activities considered to constitute construction work under the statute.^[2] "It is apparent from the text of Labor Law § 240 (1), and its history confirms, that its central concern is the dangers that beset workers in the construction industry" (Dahar v Holland Ladder & Mfg. Co., 18 N.Y.3d 521, 525 [2012]; see Soto v J. Crew Inc., 21 N.Y.3d 562, 566 [2013]). "While the reach of section 240 (1) is not limited to work performed on actual construction sites" (Martinez v City of New York, 93 N.Y.2d 322, 326 [1999]; see Dahar, 18 N.Y.3d at 525; Joblon v Solow,

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91 N.Y.2d 457, 464 [1998]), the sections protection only extends to "workers 'employed' in the 'erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" (Dahar, 18 N.Y.3d 524-525; see Prats v Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 880 [2003]).

In analyzing the nature of a plaintiff's work, a court should not "isolate the moment of injury and ignore the general context of the work" (Prats, 100 N.Y.3d at 882; see Goodwin v Dix Hills Jewish Ctr., 144 A.D.3d 744, 746 [2d Dept 2016]). Additionally, the protections of Labor Law § 240 (1) extend to workers, such as inspectors and supervisors, if their work is ancillary to or related to the construction work being performed even if their work does not necessarily involve physical construction work (see Eliassian v G.F. Constr., Inc., 190 A.D.3d 947, 948 [2d Dept 2021]; Channer v ABAX Inc., 169 A.D.3d 758,...