Clarke v. 42ND St. Dev. Project, Inc.
| Decision Date | 13 July 2016 |
| Docket Number | Third Third-Party Index No. 590674/13,Index No. 152822/12,Third-Party Index No. 590781/12,Second Third-Party Index No. 590010/13 |
| Citation | 2016 NY Slip Op 31327 (U) |
| Parties | ROBERT CLARKE and MARY ALISON CLARKE, Plaintiffs, v. 42ND STREET DEVELOPMENT PROJECT, INC., TIMES SQUARE TOWER ASSOCIATES, LLC, PRITCHARD INDUSTRIES, INC., and BOSTON PROPERTIES LIMITED PARTNERSHIP, Defendants. 42ND STREET DEVELOPMENT PROJECT, INC., and TIMES SQUARE TOWER ASSOCIATES, LLC, Third-Party Plaintiffs, v. SHULDINER GLASS, INC., Third-Party Defendant. 42ND STREET DEVELOPMENT PROJECT, INC., and TIMES SQUARE TOWER ASSOCIATES, LLC, Second Third-Party Plaintiffs, v. DAVID SHULDINER, INC. and R&R SCAFFOLDING LTD., Second Third-Party Defendants. 42ND STREET DEVELOPMENT PROJECT, INC., and TIMES SQUARE TOWER ASSOCIATES, LLC, Third Third-Party Plaintiffs, v. PRITCHARD INDUSTRIES, INC., Third Third-Party Defendant. |
| Court | New York Supreme Court |
Motion Sequence Nos. 004, 005 & 006
Motion sequence numbers 004, 005, and 006 are consolidated for disposition.
In this Labor Law action, plaintiff Robert Clarke (hereinafter, plaintiff or Clarke) alleges that on February 2, 2012, he was injured while standing on a permanent, exterior motorized scaffold at 7 Times Square, New York, New York (hereinafter, the building). Plaintiff allegedly sustained injuries while replacing a large glass panel on the 36th floor with his foreman, when his foreman was unable to control his side of the glass panel, causing the full weight of the glass panel to come under plaintiff's control.
Defendant/third third-party defendant Pritchard Industries, Inc. (Pritchard) moves pursuant to CPLR 3212 for summary judgment dismissing the complaint, the third third-party complaint, and all cross claims against it (motion sequence no. 004).
Third-party defendant/second third-party defendant David Shuldiner Inc. s/h/a Shuldiner Glass Inc. (Shuldiner) cross-moves pursuant to CPLR 3212 for summary judgment dismissing: (1) the claims of third-party plaintiffs 42nd Street Development Project, Inc., Times Square Tower Associates, LLC, and of defendant Boston Properties Limited Partnership (collectively, the Owner defendants); (2) the claims of second third-party defendant R&R Scaffolding, Ltd. (R&R) as against it; and (3) the claims of Pritchard as against it.1
The Owner defendants move pursuant to CPLR 3212 for: (1) summary judgment dismissing the complaint and all cross claims against them; and (2) summary judgment on theirclaim for contractual indemnification against Shuldiner (motion sequence no. 005).
Plaintiffs cross-move pursuant to CPLR 3212 for partial summary judgment on the issue of liability under Labor Law § 240 (1) against the Owner defendants.
Shuldiner cross-moves pursuant to CPLR 3212 for summary judgment dismissing: (1) the claims of the Owner defendants as against it; (2) the claims of R&R as against it; and (3) the claims of Pritchard as against it.
R&R moves, pursuant to CPLR 3211 and 3212, for summary judgment dismissing the second third-party complaint and all cross claims and counterclaims against it (motion sequence no. 006).
Shuldiner cross-moves pursuant to CPLR 3212 for summary judgment dismissing: (1) the claims of the Owner defendants as against it; (2) the claims of R&R as against it; and (3) the claims of Pritchard as against it.
The Owner defendants each have an ownership interest in the premises. Boston Properties Limited Partnership is also the managing agent of the building. R&R was hired to maintain, repair and inspect the permanently-installed scaffolds at the building, including the subject scaffold. Pritchard was hired as a janitorial service contractor that used the scaffold to wash the building's windows. Shuldiner was contracted to perform reglazing work at the building. Shuldiner employed plaintiff as a glazier on the date of his accident.
Plaintiff testified at his deposition that on February 2, 2012, he arrived at the building at 6:30 a.m. (Plaintiff tr at 47). It was plaintiff's first day working on the reglazing project at the building (id. at 48). Plaintiff checked in with the security desk at the loading dock and wasescorted by a building employee on the freight elevator up to where Shuldiner stored its supplies at the building (id. at 52-53, 56-57). According to plaintiff, he and other Shuldiner employees then carried the pieces of glass that needed to be installed on the exterior of the building up to the roof (id. at 65). Plaintiff's foreman, Sean Church (Church), then moved the scaffold into position (id. at 74, 82). After placing their tools in the scaffold, plaintiff and Church took the scaffold over the side of the building and connected the scaffold to the mullion guide or "fins" that ran along the facade of the building (id. at 100-104). Plaintiff testified that the purpose of the mullion guide is to hold the scaffold in place and prevent the scaffold from swaying (id. at 103, 105).
Church brought the scaffold down to the 36th floor, using the fixed remote controls on the scaffold (id. at 105-106). Church then showed plaintiff the piece of glass that needed to be replaced (id. at 108). According to plaintiff, he and Church then released the scaffold from the mullion guide in order to bring the scaffold closer to the building (id. at 108-109). Plaintiff and Church cut the old piece of glass out of the frame and lifted it onto the scaffold (id. at 114-118). Plaintiff and Church then cleaned the frame, reconnected the scaffold to the mullion guide, and brought the old piece of glass up to the roof (id. at 118-120).
Once on the roof, plaintiff got out of the scaffold and removed the old piece of glass (id. at 124-125). The new piece of glass was then loaded into the scaffold and plaintiff got back on the scaffold (id. at 129-130, 132). Church brought the scaffold back over the side of the building and the scaffold was again locked into the mullion guide (id. at 134). Church then brought the scaffold down to the 36th floor (id. at 139). When the scaffold reached the 36th floor, plaintiff and Church released the scaffold from the mullion guide (id.). Plaintiff and Church caulked theframe where the new piece of glass was to be installed (id. at 140-141). After the caulking was completed, Church moved the scaffold down slightly in preparation for lifting the new piece of glass into place (id. at 142, 144). Plaintiff and Church untied the glass from the scaffold and moved the glass to the center of the opening (id. at 146-147). Plaintiff testified that as he and Church started to lift the glass, Church told him to put the glass back down because he had an idea (id. at 149). Church then put a bucket in the middle of the scaffold and told plaintiff to lift the glass onto the bucket first and then lift it into place in the frame (id. at 149-151). Plaintiff and Church lifted the glass and placed it on the bucket (id. at 155). Plaintiff and Church then lifted the glass over the side of the scaffold and attempted to place the glass into the bottom of the frame (id. at 162-163). As Church attempted to set his side of the glass into the frame, a rubber block that had been set by plaintiff and Church to assist with the installation "flipped up" behind the glass (id. at 163, 165, 173). Plaintiff testified that Church then "jerked [the glass] up and down" as he attempted to set it into place, which caused "[t]he scaffold [to] move[] back and forth, sideways" (id. at 163, 165). Plaintiff stated that he felt "all the weight of that glass on [him]," "all the weight went to [his] side," and that he "actually felt like [he] was holding the whole glass" (id. at 520, 537). Plaintiff felt a shooting pain through his whole body as he was holding the glass (id. at 169).
However, Church, Shuldiner's foreman, testified that while he and plaintiff were in the process of setting the glass, the "fins" were locked into the vertical tracks on the scaffold on the date of the accident (Church tr at 97-98).
On May 15, 2012, plaintiffs commenced the instant action, seeking recovery under LaborLaw §§ 240, 241, 200 and under principles of common-law negligence against 42nd Street Development Project, Inc. and Times Square Tower Associates, LLC. In the complaint, Mrs. Clarke asserts a claim for loss of society, support, services, and consortium.
42nd Street Development Project, Inc. and Times Square Tower Associates, LLC commenced a third-party action against Shuldiner Glass, Inc., alleging causes of action for contribution, common-law indemnification, contractual indemnification, and failure to procure insurance. Shuldiner asserted counterclaims for contribution and common-law indemnification against 42nd Street Development Project, Inc. and Times Square Tower Associates, LLC.
42nd Street Development Project, Inc. and Times Square Tower Associates, LLC commenced a second third-party action against David Shuldiner, Inc. and R&R, alleging causes of action for contribution, common-law indemnification, contractual indemnification, and failure to procure insurance. David Shuldiner, Inc. asserted counterclaims for contribution and common-law indemnification against 42nd Street Development Project, Inc. and Times Square Tower Associates, LLC. R&R asserted counterclaims for contribution, common-law indemnification, and contractual indemnification against 42nd Street Development Project, Inc. and Times Square Tower Associates, LLC.
On August 27, 2013, 42nd Street Development Project, Inc. and Times Square Tower Associates, LLC commenced a third third-party action against Pritchard, alleging causes of action for contribution, common-law indemnification, contractual indemnification, and failure to procure insurance. Pritchard asserted counterclaims for contribution, common-law indemnification, and contractual indemnification against 42nd Street Development Project, Inc. and Times Square Tower Associates, LLC.
...
To continue reading
Request your trial