Corrado v. Metro. Transit Auth.

• Court: New York Supreme Court
• Writing for the Court: CAROL R. EDMEAD, J.
• Citation: Corrado v. Metro. Transit Auth., 999 N.Y.S.2d 796(Table) (N.Y. Sup. Ct. 2014)
• Decision Date: 26 September 2014
• Docket Number: No. 102002/2010.,102002/2010.
• Parties: Anthony CORRADO, Plaintiff, v. METROPOLITAN TRANSIT AUTHORITY, Metro North Commuter Railroad, Savage Services Corporation, CANAC Railway Services, Inc., and CANAC Inc., Defendants.

999 N.Y.S.2d 796 (Table)

Anthony CORRADO, Plaintiff

v.METROPOLITAN TRANSIT AUTHORITY, Metro North Commuter Railroad, Savage Services Corporation, CANAC Railway Services, Inc., and CANAC Inc., Defendants.

No. 102002/2010.

Supreme Court, New York County, New York.

Sept. 26, 2014.

Macaluso & Fafinski, P.C., Bronx, for Plaintiff.

White Fleischner & Fino, LLP, New York, for MTA and Metro North.

Hannum Feretic Prendergast & Merlino, LLC, New York, for Savage Services Cop., CANAC Railway Services, Inc., and CANAC, Inc.

CAROL R. EDMEAD, J.

MEMORANDUM DECISION

This action for personal injuries arises from an incident that occurred on April 23, 2009, during a railroad tie replacement project at Metro North Commuter Railroad's (“Metro North”) Hudson Line (the “Project”) in which a wheel of a gantry crane severed the second through fourth fingers of plaintiff's left hand (the “Incident”).

Defendants Savage Services Corporation (“Savage”), CANAC, Inc. (“CANAC, Inc.”), and CANAC Railway Services, Inc. (“Railway”) (collectively, the “Railway Defendants”)¹ now move pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint and all cross-claims asserted against them (sequence 003).

Defendants Metropolitan Transit Authority (the “MTA”) and Metro North also move pursuant to CPLR 3211 and 3212 for dismissal of the complaint and all cross-claims, and for contractual and/or common law indemnification from Railway and CANAC, Inc. (sequence 004).

Plaintiff opposes both motions and cross-moves for summary judgment against Metro North as to his claims for common law negligence and violations of Labor Law 200 and 241(6), and against Metro North and MTA as to his Federal Employer Liability Act (“FELA”) claim.²

Factual Background

In 2007, Metro North, a subsidiary of the MTA, entered into a contract with Railway for the provision of labor and equipment necessary to replace concrete ties on the Hudson Line (the “Contract”).³ Under the Contract, Railway provided a Track Laying Machine (“TLM”) called the “P–811,” and all equipment, tie cars, handling equipment, and all necessary “maintenance and installation services” (MN, exh. S, p. 158). “Installation services” included labor for all positions in and around the TLM required for its successful operation. Additionally, as per the “Scope of Work” section, Railway was to submit detailed work plans describing the proposed sequence of operations and proposed methods for accomplishing work.

The “Laborer's Duties” section of the Contract provided that “tie space handlers” were responsible for ensuring that spacers were removed prior to the pick-up of ties by the gantry, and that “tie handling platform attendants” were to “control and correct problems with the ties being removed at the old tie gathering platform” (MN, exh. S, p. 167). “Quality control and clip-up attendants” were responsible for applying clips to new ties; ensuring that newly installed ties were not missing hardware and/or were not skewed; and replacing components that may have been damaged during the lining operation.” (Id. )

The Contract included various provisions which set forth the parties' responsibilities.⁴ Also, Metro North used a “Roadway Worker Safety Manual” (the “Safety Manual”) mandated by the federal government (Plaintiff motion, exh. D). The Manual provided that it applied to all “roadway workers,” which included employees or employees of a contractor to Metro North. The Manual further provided that the “Employee–in–Charge,” (who was Ronald Ploss [“Ploss”] of Metro North) was responsible for the “safety, instruction, performance, and on-track protection of all employees” under its jurisdiction. It also provided that the Employee–in–Charge was to “personally and continuously supervise any work involving hazards and discuss specific procedures to protect against such hazards.” (Id., exh. D, p 10).

With respect to indemnification, article 5.01 of the RFP provided that Railway “shall be solely responsible for ... all injuries (including death) to all persons, including, but not limited to, employees of [Railway], its Subcontractors, and the Indemnified Parties ...” for injuries that occurred during the Project, and that Railway:

“shall indemnify and save harmless [Metro North and the MTA], to the fullest extent permitted by law, from loss and liability upon any and all claims and expenses ... on account of loss and liability for bodily injuries ... to the extent such loss and liability is caused by the negligence or intentional act of [Railway] or, its employees, agents, Subcontractors, or any person under the direct supervision of [Railway] and for whom [Railway] is responsible for the performance of [the Project].” (MN, exh. S p 51).

Metro North and the MTA are listed as “Indemnified Parties” (MN, exh. S p 42–43).

According to Gary Plant (“Plant”), a Savage senior vice-president, Metro North leased the subject tie cars from Railway before the 2009 production season. The lease commenced when Metro North took control of the tie cars for initial movement from the cars' rest station to the tie manufacturer which supplied ties for the Project.

The Project and Equipment

The Project involved the replacement of old concrete railroad ties with new concrete ties.⁵ Under Metro North's direction, the tie manufacturer would ship tie cars loaded vertically with five rows of ties. Once transported to New York, Metro North unloaded, stacked and stored the ties at its facilities. Upon arrival, Metro North would either unload the entire car (and ship it back to the manufacturer to be reloaded), or it would remove the top layer of ties from the car. When Metro North removed the top layer of ties, this was so that the gantry, a mobile, crane-like device used to lift and move ties, could function properly, as it could not do so if all five rows of ties remained in place. None of the pre-production, transport, unloading or storage of the ties was performed by Railway or Savage; this work was performed under the sole supervision and control of Metro North. (MN, exh. N, p 47–51, 54–60).

To complete the Project, the crew used a “consist,” i.e., interconnected railroad equipment, which, in this case, included a locomotive, tie cars, gantry and the P–811. The consist usually included approximately eight tie cars which were loaded with new ties (which weigh approximately 800 pounds apiece) at the start of a day's production.

The P–811 tie replacement machine was the actual piece of equipment that replaced old ties, and was located at the back end of the consist. New ties were moved from the tie cars to the P–811 by the gantry, which traveled over the ties by riding on separate rails (not the actual rails on which the consist ran) located on the sides of the tie cars (the “running rails”).

The gantry was operated by a worker seated in a cab situated at its top, which was positioned in such a way that the operator's view of activity below was obstructed. On the date of the Incident, the gantry was operated by Mitchell Kerman (“Kerman”) of Railway. The gantry was positioned so it could ride over up to four rows of stacked ties. The gantry would place new ties onto a conveyor of the P–811, which would carry new ties through the P–811 machinery to an area near the consist's plow. The gantry moved ties to and from the P–811 several times a day. via a crane mounted to its underside, which could be hoisted up and down by the gantry operator. The gantry had a clamping/closing mechanism designed to close on ties and lift them up. Once the ties were lifted, the gantry operator would transport them by holding the mechanism closed and maneuvering the gantry on the running rails.

For the gantry to lift ties, its clamping mechanism was required to physically get “under” the ties. To foster this action, each row of ties was separated by pieces of scrap wood, called “dunnage” or “spacers.” Dunnage/spacers would be removed once a row of ties was lifted away.

When the tie cars were brought to the Project site in the morning, the tie rows were separated with dunnage/spacers, with the exception of the bottom/lowest row. This row of ties did not rest on spacers, but rather on wooden “timbers” which were actually part of, and affixed to, the tie car. The timbers' purpose was to keep the ties sufficiently raised off the tie car so the gantry's clamping mechanism could get underneath and lift the bottom row of ties.

Frank Hardman (“Hardman”), a Railway supervisor, testified that in 2008, before the tie cars were transferred to Metro North, he had made specific recommendations for the repair of the actual tie car involved in the Incident.⁶ He believed that the timbers needed to be replaced because the tie car was decayed and had been ineffectively repaired at some point prior. Also, Hardman believed that the timbers themselves were problematic in that, among other things, they consisted of the wrong material, were too short and missing planks, and had wear and rot on them. Moreover, a portion of the timbers had a small piece of plywood on top of it to bring it up to the height of another timber to which it was connected. This plywood was secured by a “spike”; an approximately 10 inch long nail.⁷

Hardman also testified that this use of plywood, combined with the use of a spike, alarmed him before the 2009 production season. This type of repair, in Hardman's view, was not customary, but that with this repair, he “tried to secure it as best as he could.”⁸ In this vein, Hardman and Adrian Versluis (“Versluis”), another Railway supervisor, testified that this section would normally be held down with a bolt and nut (which would better secure the ties), and not by a spike.⁹

Hardman voiced his disapproval with the setup, and claimed he could have properly secured the problematic timber; however, time constraints imposed upon him prevented him from doing so. Additionally, Hardman believed that this portion of the tie car could be dangerous because it could become dislodged and/or ...