Casalini v. Alexander Wolf & Son
| Decision Date | 21 March 2013 |
| Docket Number | Second Third-Party Index No.: 590224/11,Index No.: 102184/10,Third-Party Index No.: 590573/10 |
| Citation | 2013 NY Slip Op 30545 |
| Court | New York Supreme Court |
| Parties | MICHAEL CASALINI and GAIL CASALINI, Plaintiffs, v. ALEXANDER WOLF & SON a/k/a A.W.&S. CONSTRUCTION CO., INC., MANHATTAN MALL EAT, LLC, STRAWBERRY STORES, INC., VNO 100 WEST 33RD STREET, LLC, VORNADO REALTY TRUST and VORNADO SHENANDOAH HOLDINGS, LLC, Defendants. MANHATTAN MALL EAT, LLC, STRAWBERRY STORES, INC., VNO 100 WEST 33RD STREET, LLC, VORNADO REALTY TRUST and VORNADO SHENANDOAH HOLDINGS, LLC, Third-Party Plaintiffs, v. FLOPJN PAINTING, INC., Third-Party Defendant. ALEXANDER WOLF & SON a Division of A.W.& S. CONSTRUCTION CO. s/h/a ALEXANDER WOLF & SON a/k/a A.W.&S. CONSTRUCTION CO., INC., Second Third-Party Plaintiff, v. FLORIN PAINTING, INC., Second Third-Party Defendant. |
For Plaintiffs:
Silbowitz, Garafola, Silbowitz,
Schwatz & Frederick, LLP
For Third-Party Plaintifffs:
Wilson, Elser, Moskowitz,
Edelman & Dicker LLP
For Defendant Alexander Wolf & Son:
Barry, McTiernan & Moore
For Third-Party Defendant Florin Painting, Inc.:
Jones Hirsch Connors Miller & Bull P.C.
In this action to recover damages for personal injuries, third-party/second third-party defendant Florin Painting, Inc. ("Florin") moves, on behalf of defendants/third-party plaintiffs Manhattan Mall Eat, LLC ("Manhattan Mall"), Strawberry Stores, Inc. ("Strawberry"), VNO 100 West 33rd Street ("VNO"), Vornado Realty Trust ("Vornado Realty") and Vornado Shenandoah Holdings, LLC ("Vornado Shenandoah") (collectively "the ownership defendants"), for summary judgment dismissing plaintiffs Michael Casalini ("Casalini") and Gail Casalini's third and fourth causes of action predicated upon alleged violations of Labor Law § 241 (6) against the ownership defendants; defendant/second third-party plaintiff Alexander Wolf & Son a/k/a A.W. S. Construction Co., Inc. ("Wolf) cross-moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' Labor Law § 241 (6) claim as against it; and plaintiffs cross-move, pursuant to CPLR 2221, for an order granting them leave to reargue that part of the order of the court, dated July 12, 2012, which denied VNO and Strawberry summary judgment on common-law indemnification as against Wolf.
On November 21, 2008, while working on a renovation project at a Strawberry store located at the Manhattan Mall, 100 West 33rd Street, New York, New York, Casalini slipped and fell on debris. At the time of the accident, VNO owned the premises where the accident took place, and Strawberry was its tenant. Casalini was employed by Florin, a subcontractor performing work on the project pursuant to an agreement with Wolf, the project's general contractor.
Casalini testified that, at the time of the accident, he and his co-worker, Vincent Bartelomucci ("Bartelomucci"), were hanging wallpaper on the second floor of the premises. Casalini stated that he received all of his instructions as to how to perform his job duties as a paper hanger from his Florin boss. Casalini did not receive any instruction from the general contractor on the project.
Casalini explained that his paper hanging job required the use of a five-foot-tall A-frame ladder. Before setting up the ladder, Bartelomucci used his foot to kick a small amount of dust and paper away from the area where the work was to be performed. After hanging paper for about 15 minutes, Casalini descended the ladder. Upon stepping off the ladder and taking about three steps back from the ladder in order to view his work, Casalini slipped and fell when he stepped in a four-foot-long by two-foot-wide pile of wet debris. Specifically, Casalini testified, as follows:
Up on the ladder I was hanging the tops of the wall covering. I stepped off of the ladder, took three steps, tried to turn around. My foot slipped on a pile of debris. I went flying forward, smashed my head against the bucket of water that was filled with the tileman's sand that was in it.
Casalini described the pile of debris that he slipped on as consisting of trash in the form of soda cans, coffee cups, a pizza box, sheetrock, a small pipe and some wiring. At the time that the ladder was set up, approximately 15 minutes before the time of the accident, Casalini did not observe the subject pile of debris in the accident area. In addition, Casalini never made any complaints to anyone about the presence of debris in the area of the accident.
Casalini also testified that, at the time of the accident, there were tile tradesmen working in the accident area. In addition, various other workers were eating their breakfast in the area. Casalini noted that it was common practice for the various trades to throw their garbage onto the floor.
Bartolomucci witnessed the accident. He testified that he and Casalini used a five-foot A-frame ladder to perform their paper hanging work, which he carried to the work location and set up. It was also Bartolomucci's responsibility to clean the work area by kicking away any dirt and debris, in order to prevent it from getting on the wall and causing the paper to pimple. After Bartolomucci performed this prep work, Casalini was to hang the top of the wall covering, and he was to hang the bottom.
Bartolomucci confirmed Casalini's version of the accident by testifying that Casalini "took about four steps back and then he just slid." On the date of the accident, Bartolomucci observed a number of tradesmen at the premises. He stated that it was common for the workmen to eat their lunch and then throw their lunch trash on the floorfor the laborers to sweep up into a big pile for removal. However, sometimes, the trades were asked to clean up their own debris.
Kevin Walter ("Walter"), Wolf's project manager, testified that he maintained a supervisory role over the various subcontractors at the work site. Specifically, he was responsible for ensuring that the necessary materials were ordered and delivered on time, and for checking on the progress of the work. Walter testified that Wolf's supervisor was in charge of coordinating the trades, making sure that there was sufficient labor on hand at the job site and removing debris. Wolf hired union laborers to transport debris from the work sites to the loading docks. After debris was removed from a site, an immediate inspection of the subject area would be conducted. Walter explained that debris removal was immediate in that the debris "wouldn't stay there," stressing that "[c]leanup was constant" throughout the day. Walter asserted that there was never a time that the laborers swept up debris from a work site into a pile and then just left it there.
Immediately following his accident, Casalini told his medical provider at St. Vincent's Hospital in Manhattan that his accident was caused as a result of him falling while stepping off a ladder. In the paragraph of the hospital record entitled "HISTORY OF PRESENT ILLNESS," physician's assistant, Zach Goodman, recorded that Casalini was injured "when coming down a ladder, [he] lost his footing on the last step and turned suddenly and fell to his right side."
In motion sequence 001, the ownership defendants had moved, pursuant to CPLR 3212, for summary judgment, among other things, on Strawberry and VNO's cross claims against Wolf for common-law indemnity, including all costs and attorney's fees. In that motion, VNO and Strawberry argued that they were entitled to common-law indemnification from Wolf, because VNO and Strawberry did not supervise or control the work at the premises, and because Wolf was responsible for clearing the debris at the premises.
In its order of July 12, 2012, the court held that VNO and Strawberry failed to make the required showing entitling them to common-law indemnity against Wolf. The court stated, as follows:
In a footnote, the court also noted that "[p]laintiff's hospital records, which state that he fell off the ladder, contradict [his] testimony and create an issue of fact as to the cause of his injuries" (id.).
'"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'." Santiago v. Filstein, 35 A.D.3d 184, 185-186 (1st Dept 2006), quoting Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 1985). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v. Metropolitan Museum of Art, 27 A.D.3d 227, 228 (1st Dept 2006); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. Grossman v. Amalgamated Hous. Corp., 298 A.D.2d 224, 226 (1st Dept 2002).
Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety to workers. See Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 (1993). However, Labor Law § 241(6) is not self-executing, and in order to show a violation...
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