Present: Hon. Mary Ann Brigantti
DECISION/ORDER
The following papers numbered 1 to 15 read on the below motions noticed on March 12, 2015 and June 23, 2015 and duly submitted on the Part IA15 Motion calendar of May 1, 2015, and July 7, 2015:
| 313-315 West's Cross-Motion, Opp., Exhibits |
| K&K's Aff. In Opp., Exhibits |
| Pls.' Reply, Opp. to Cross-Motion, Exh. |
| 313-315 West's Reply Aff., Exhibits |
| 313-315 West's Aff. In Opp., Exhibits |
Upon the foregoing papers, the plaintiff Miguel Delgado, Jr., as guardian of the person and property of Miguel Delgado, Sr., IP, and Rosa Delgado, individually and as husband and wife (collectively, "Plaintiffs"), move for summary judgment against all defendants and the third-party defendant on the grounds that they violated Labor Law §240(1) and 241(6).
Defendants/third party plaintiffs 313-315 West 125th Street, LLC ("313-315 West"), Plaza Circle Enterprises, LLC. ("Plaza Circle"), Solil Management, LLC ("Solil Management"), Sol Goldman Investments LLC, Estate of Lillian Goldman, and Lillian Goldman 2002 LLC, oppose Plaintiffs' motion, and cross-move for an Order (1) granting summary judgment to defendants Sol Goldman Investments LLC, Estate of Lillian Goldman, and Lillian Goldman 2002 LLC, dismissing Plaintiffs' complaint as against them; (2) granting summary judgment to 313-315 West, Plaza Circle, and Solil Management, dismissing Plaintiffs' claims under Labor Law §200 and common law negligence; (3) reforming the contract between 313-315 West's agent, Solil Management, LLC, and third-party defendant Katselnik & Katselnik Group, Inc. ("K&K"), to correctly name 313-315 West as the "Owner" of the subject premises; (4) granting summary judgment in favor of 313-315 West, Solil Management, and Plaza Circle, on their claims for contractual indemnification against K&K and (5) granting summary judgment in favor of 313-315 West, Solil Management, and Plaza Circle, on their clams for common law indemnification against K&K. Plaintiffs oppose that branch of the cross-motion seeking summary judgment in favor of defendants Sol Goldman Investments LLC, Estate of Lillian Goldman, and Lillian Goldman 2002 LLC. K&K opposes those branches of the cross-motion seeking summary judgment on claims of common law and contractual indemnification, and that branch of the cross-motion seeking reformation of the contract. K&K also opposes Plaintiffs' motion for summary judgment.
Separately, K&K moves for summary judgement, dismissing the contractual indemnity claims asserted by defendants 313-315 West, Plaza Circle, Sol Goldman Investments LLC, Estate of Lillian Goldman, and Lillian Goldman 2002 LLC. 313-315 West, Plaza Circle, Solil Management, Sol Goldman Investments LLC, Estate of Lillian Goldman, and Lillian Goldman2002 LLC. oppose K&K's motion insofar as it seeks dismissal of 313-315 West and Plaza Circle's contractual indemnity claims.
The above motions are consolidated and disposed of in the following Decision and Order.
This matter arises out of an alleged construction site accident that occurred on September 9, 2011, at the premises located at 313 West 125th Street in New York, New York. On that date, plaintiff Miguel Delgado, Sr. (individually, "Plaintiff") was working as a laborer for third-party defendant K&K when he allegedly fell from an elevated scaffold and down an exposed stairwell during a construction project. At the time of the alleged accident, the premises was owned by 313-315 West, and managed by co-defendants Solil and Plaza Circle. As a result of this accident, Plaintiff allegedly sustained a closed head injury resulting in permanent total disability, and rendering him unable to engage in daily life without assistance and unable to testify on his own behalf.
Miguel Delgado, Jr., son of the injured Plaintiff, was deposed on March 26, 2014. He testified, in pertinent part, that he had spoken to Plaintiff's co-worker, Oscar, to try and find out how this accident occurred. Oscar told him that Plaintiff had fallen from a "stepladder" while painting, and he had witnessed the fall. Three months later, Oscar allegedly approached Mr. Delgado, Jr. and asked to speak with him privately. Oscar then told Mr. Delgado, Jr. that he had photographs and videotapes that could support Plaintiffs' case. Oscar advised that he wanted $40,000 in exchange for his evidence and testimony, and $200,000 in total. Oscar allegedly told him that "his testimony could go one way if he was paid, and another way if he wasn't." Mr. Delgado, Jr., testified that at this private encounter, he did not speak with Mr. Escalante about the events of the accident. The deponent testified that he later spoke to a man named Radames who was allegedly working with Plaintiff at the time of the accident. "Radames" alleged that there were unsafe working conditions at the site, but admitted that he could not prove it. Other than Oscar and Radames, Mr. Delgado, Jr., did not speak with anyone else who was working at the job site about this accident.
Nicola Crecco of K&K appeared for deposition, and testified that at relevant times he was employed by K&K as a project manager. His duties included overseeing the construction work, project coordination, filing papers, and scheduling. With respect to this particular project, Mr.Crecco testified that he was on site daily to supervise K&K's foreman, as well as the foreman for the subcontractors. Mr. Crecco ensures that K&K employees have proper materials and equipment, and generally acted as a superintendent or "top person" at the work site. If he observed an unsafe condition, it was his responsibility to remedy it immediately.
As for the accident itself, Mr. Crecco testified that he arrived on the scene and observed Plaintiff lying on the floor. The only person who had witnessed the accident was Oscar Escalante, Plaintiff's co-worker. Mr. Escalante told him that he and Plaintiff had been working on a four-foot high "mini scaffold" securing metal studs. The scaffold itself was approximately 4-5 feet wide, with two planks placed on top to use the scaffold at a height of either two feet or four feet. The scaffold had a rail around its perimeter that sits 12-15 inches above the planks when they are set to the four-foot level, as they were on the date of this accident. Mr. Escalante and Plaintiff had been working on building an enclosure for a staircase. Mr. Escalante told Mr. Crecco that Plaintiff was on top of the mini scaffold when he fell from the outside partition of the staircase, through the metal studs, and onto the stairs below. The stairwell was approximately nine feet feet lower than the first floor. Mr. Crecco testified that the night before the accident, he personally observed a worker place a cover over the opening of the staircase so as to completely cover it. However, it would have been necessary to remove the cover at the time of this accident to allow workers to perform their work framing out the wall adjacent to the staircase.
Mr. Crecco testified that Plaintiff was wearing a safety harness when he observed him lying on the staircase. Mr. Crecco had given Plaintiff the harness the day before, when he began his employment with K&K. At the time of the accident, there was an overhead structural steel that the harness could have been hooked onto. Plaintiff also had access to a lifeline in a gang box that he could have used to clip into the scaffold, that would have offered him proper protection. Mr. Crecco noted that Mr. Escalante was aware that a lifeline was available. Mr. Crecco testified that, in addition to the harness Plaintiff was wearing, he observed a safety cable draped over the scaffold cable to which Plaintiff could have fastened himself. Plaintiff was also working near a structural brick column, to which his safety harness could have been attached. K&K owned the scaffold and safety equipment. No one else would have given safety instructions to K&K employees.
Oscar Escalante appeared for deposition on January 13, 2012. The deposition was conducted by Plaintiff's prior counsel, without notice to any of the defendants in this action. Onthat date, he testified that at the time of this accident, Plaintiff was assisting him in carpentry work that entailed the installation of metal framing studs. Mr. Escalante testified that K&K's supervisor, Nick, told employees that if they were working on a scaffold over six feet, they had to wear a harness and a hard hat at all times. The day prior to this accident, Nick instructed Mr. Escalante and Plaintiff to wear harnesses and a hard hat every day on the job. Mr. Escalante testified that both himself and Nick were responsible for giving safety instructions and checking on the workers. Mr. Escalante witnessed this accident, and testified that Plaintiff was wearing a harness and a hard hat at the time. Plaintiff's harness had a "big clip" at the waist, and was attached to a six-foot clip that would run from the harness to an anchor, or if a longer distance was involved, a rope. Prior to this accident, Mr. Escalante had...
