DeMaria v. RBNB 20 Owner, LLC

• Decision Date: 30 June 2015
• Docket Number: 106013/11, 13691A, 590391/12, 590675/12, 13691
• Citation: 2015 N.Y. Slip Op. 05599,129 A.D.3d 623,12 N.Y.S.3d 79
• Parties: Mario DeMARIA, Plaintiff–Respondent, v. RBNB 20 OWNER, LLC, et al., Defendants–Respondents, Linden Construction Corp., et al., Defendants–Appellants, Tower Interior Corp., Defendants. RBNB Owner, LLC, et al., Third–Party Plaintiffs–Respondents, v. Linden Construction Corp., Third–Party Defendant–Appellant. Linden Construction Corp., Second Third–Party Plaintiff–Appellant, v. Tower Interior Corp., Second Third–Party Defendant. RBNB 20 Owner, LLC, et al., Third Third–Party Plaintiffs–Respondents, v. Forest Electric Corp., Third Third–Party Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 623

12 N.Y.S.3d 79

2015 N.Y. Slip Op. 05599

Mario DeMARIA, Plaintiff–Respondent

v.RBNB 20 OWNER, LLC, et al., Defendants–Respondents

Linden Construction Corp., et al., Defendants–Appellants

Tower Interior Corp., Defendants.

RBNB Owner, LLC, et al., Third–Party Plaintiffs–Respondents

v.Linden Construction Corp., Third–Party Defendant–Appellant.

Linden Construction Corp., Second Third–Party Plaintiff–Appellant

v.Tower Interior Corp., Second Third–Party Defendant.

RBNB 20 Owner, LLC, et al., Third Third–Party Plaintiffs–Respondents

v.Forest Electric Corp., Third Third–Party Defendant–Appellant.

106013/11, 13691A, 590391/12, 590675/12, 13691

Supreme Court, Appellate Division, First Department, New York.

June 30, 2015.

Murphy Higgins & Schiavetta, LLP, New Rochelle (Jody C. Benard of counsel), for Linden Construction Corp., appellant.

Ahmuty, Demers, & McManus, Albertson (Glenn A. Kaminska of counsel), for Forest Electric Corp., appellant.

Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for Mario DeMaria, respondent.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise M. Cherkis of counsel), for RBNB 20 Owners LLC, NB 20 Developers, LLC and Newmark Construction Services, LLC, respondents.

FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, RICHTER, CLARK, JJ.

Opinion

Orders, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about February 25, 2014 and March 3, 2014, which, insofar as appealed from as limited by the briefs, denied defendant Linden Construction Corp.'s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims and the Labor Law § 241(6) claim as predicated on 12 NYCRR 23–1.7(e)(2) as against it and the third-party contractual indemnification claim, denied defendant Forest Electric Corp.'s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims and the Labor Law § 241(6) claim as predicated on 12 NYCRR 23–1.30 as against it and the third third-party contractual indemnification claim, and granted the cross motion by defendants RBNB 20 Owner, LLC and NB 20 Developers, LLC (collectively, the owner defendants) and Newmark Construction Services, LLC (Newmark) for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against them and for summary judgment on their third-party contractual indemnification claims against Linden and Forest, unanimously modified, on the law, to grant Linden's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it, and to deny the owner defendants and Newmark's cross motion insofar as it sought summary judgment on their contractual indemnification claims against Forest and Linden and summary judgment dismissing the common-law negligence and Labor Law § 200 claims against defendant Newmark, and otherwise affirmed, without costs.

Plaintiff sustained injuries when he stepped on and fell over an 8– to 10–inch sprinkler pipe at the construction site. Defendant RBNB 20, the owner of the building under construction, retained defendant NB 20 as the “Contractor” on the project. RBNB and NB20, the owner defendants, retained defendant Newmark as the “construction manager.” NB 20 subcontracted the electrical work (including lighting of the work site) to defendant Forest, the drywall and carpentry work to defendant Linden, and the fire protection work to nonparty Active Fire Sprinkler, which was plaintiff's employer. Linden, in turn, sub-subcontracted the taping and spackling work to defendant Tower Interior Corp. and the sheetrocking and carpentry work to nonparty New York Drywall. Plaintiff testified that the pipe was residual waste from his sprinkler work and that the spacklers employed by Tower created the hazardous condition by knocking over the disposal bucket in which he had placed the pipe. He also testified that inadequate lighting was a cause of his accident.

Linden was entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it. As a subcontractor and, therefore, the statutory agent of the owner and general contractor, Linden stands in the shoes of the owner and general contractor, neither of which may be held liable under common-law negligence or Labor Law § 200 (a codification of common-law negligence) for injuries arising from a dangerous condition in the absence of evidence that such party actually created the dangerous condition or had actual or constructive notice of it (Cappabianca v. Skanska USA Bldg., Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept.2012] ; Lopez v. Dagan, 98 A.D.3d 436, 438, 949 N.Y.S.2d 671 [1st Dept.2012], lv. denied 21 N.Y.3d 855, 967 N.Y.S.2d 688, 2013 WL 1876504 [2013] ). Uncontroverted evidence establishes, as a matter of law, that Linden sub-subcontracted all of its work to Tower and New York Drywall and furnished no workers in its own employ to perform work. Rather, Linden's presence at the site was limited to one-hour visits by its president once a week or every other week. Since there is no evidence that Linden itself created the condition in question or had actual or constructive of it, it cannot be held liable for injuries arising from that condition under common-law negligence or Labor Law § 200, neither of which makes an owner, a general contractor or their statutory agent vicariously liable for the negligence of a downstream subcontractor (see Burkoski v. Structure Tone, Inc., 40 A.D.3d 378, 381, 836 N.Y.S.2d 130 [1st Dept.2007] [“While the conditions that allegedly caused the accident may have been created by the negligence of ... the flooring subcontractor, neither the common law nor Labor Law § 200 makes STI, as general contractor, vicariously liable for the negligence of its subcontractors”] ).

However, given that Linden's subcontract with NB 20 delegated to it the authority to supervise all drywall work, and given plaintiff's allegation that the presence of the pipe segment on the floor was caused by employees of Linden's spackling sub-subcontractor (Tower), Linden is subject to liability under Labor Law § 241(6) as a statutory agent (Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981] ; ...