Erickson v. Cross Ready Mix, Inc., 2008 NY Slip Op 32658(U) (N.Y. Sup. Ct. 9/22/2008), 011947/05

• Decision Date: 22 September 2008
• Docket Number: 011947/05,Sequence No.: 009.,Sequence No.: 006.,Sequence No.: 008.,Sequence No.: 007.
• Citation: 2008 NY Slip Op 32658
• Parties: Richard J. Erickson. Plaintiff. v. Cross Ready Mix, Inc., and "JOHN DOE", an agent, servant and/or employee of Cross Ready Mix, Inc., Turner Construction Company, Elite Ready Mix Corporation and "JOHN DOE", an agent, servant and/or employee of Elite Ready Mix Corporation. Defendants. Turner Construction Company Third-Party Plaintiffs, v. Commodore Construction Corp. Third-Party Defendant.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 32658(U)

Richard J. Erickson. Plaintiff. v. Cross Ready Mix, Inc., and "JOHN DOE", an agent, servant and/or employee of Cross Ready Mix, Inc., Turner Construction Company, Elite Ready Mix Corporation and "JOHN DOE", an agent, servant and/or employee of Elite Ready Mix Corporation. Defendants.

Turner Construction Company Third-Party Plaintiffs, v. Commodore Construction Corp. Third-Party Defendant.

011947/05

Sequence No.: 006.

Sequence No.: 007.

Sequence No.: 008.

Sequence No.: 009.

Supreme Court of the State of New York, Nassau County.

September 22, 2008.

DANIEL MARTIN, Judge.

Defendant, Cross Ready Mix, Inc. moves pursuant to CPLR 3212, for an Order granting summary judgment dismissing the complaint of the plaintiff, Richard J. Erickson, and dismissing any and all cross claims asserted against it.

Third-party defendant, Commodore Construction Corp. moves pursuant to CPLR 3212, for an Order granting summary judgment dismissing the complaint of the defendant/third party plaintiff, Turner Construction Corp., and dismissing any and all cross claims asserted against it.

Defendant, Elite Ready Mix Construction, moves pursuant to CPLR 3212, for an Order granting summary judgment and dismissing the complaint of the plaintiff, Erickson, in its entirety, and all cross claims asserted against it.

Defendant/third party plaintiff, Turner Construction Company, cross-moves pursuant to CPLR 3212, for an Order granting summary judgment dismissing plaintiff, Erickson's complaint; and for an Order, pursuant to CPLR 3212, granting summary judgment in its favor for contractual indemnification against the third party defendant, Commodore Construction Corp.

The motions are determined as set forth below.

This personal injury action arises out of an accident which occurred on November 4, 2003, at a construction site located at 177 Cantiague Rock Road, Hicksville, New York (the "job site"). On July 28, 2003, defendant/third party plaintiff, Turner Construction Company ("Turner"), entered into a contract with third party defendant, Commodore Construction Corp. ("Commodore") to perform concrete and masonry work for and at the Endo Pharmaceutical 177 R&D Building located at the job site (Turner Cross Motion, Ex. K) . The construction job included renovation of an existing building and construction of a new one along with roads, parking lots and walking areas around the buildings. Turner, as the general contractor for this project, retained Commodore, as a concrete subcontractor (O'Connor Tr., p. 13). Commodore's laborer foreman, James O'Connor, testified at deposition that in order to perform its work, Commodore entered into a verbal agreement with defendant, Cross Ready Mix, Inc. ("Cross") to deliver the concrete to the job site (Id., p. 13).

Cross's dispatcher, Patrick Deacitis explained at deposition that Cross too, on occasion, hired trucks from other concrete companies to make deliveries for it and on those occasions, the truck hire was done by phone call without a written contract or other documentation (Deacitis Tr., p. 7). Deacitis explained that when Cross hired trucks from other concrete companies, the drivers from those other companies reported to Cross' facility, filled up their truck's water tank and then went to Cross's "dispatch room" to get a delivery ticket showing them where they were to make the concrete delivery (Id., p. 8). After learning where the delivery was to be made, those drivers then had their truck loaded with concrete and left to make the delivery (Id).

Deacitis testified that he was working as Cross's dispatcher on November 4, 2003 and that he specifically recalled dispatching trucks from other companies that day and more particularly, dispatching two trucks hired from Elite Ready Mix, one of which was sent to the subject work site. He testified that he personally wrote in the name "Elite" on the particular delivery ticket at the time the delivery ticket was given to the Elite driver (Id., p. 16). Deacitis testified that, other than giving the Elite driver directions as to where the delivery of concrete was to be made, the Elite driver was given no other instructions (Id., p. 22). Deacitis testified that Cross did not pay the Elite driver directly for his work that day; instead, Elite sent Cross a bill for the truck hire for the day (Id., pp. 24, 28). At the end of the day, the Elite truck and driver did not return to the Cross facility.

Elite's owner and operating manager, Anthony Grecco, also testified that on November 4, 2003, he hired out two Elite trucks with drivers named "Alex" and "Joe" to Cross but that neither "Alex" nor "Joe" was involved in an accident on November 4, 2003 (Grecco Tr., pp. 18-23, 33).

At his deposition, plaintiff, Richard J. Erickson ("Erickson") testified that at the time of the incident he was employed by Commodore as a concrete laborer. His job duties for the project included shoveling dirt, building forms for the pouring of concrete, hammering, nailing, bending rebar, grading dirt and excavating pipes with shovels and by hand (Erickson Tr., pp. 9-12). Plaintiff stated that he had worked at the job site for approximately one and one-half months before the incident occurred (Id., p. 16) and during that time, he received all of his work assignments, instructions and directions of where to perform his work from his foreman and his "shop steward" both of whom were employed by Commodore (Id., pp. 22-23).

On November 4, 2003, plaintiff arrived at the jobsite at approximately 7:00 am and was assigned by Commodore's carpenter foreman, James O'Connor, to pour sidewalk curbs and light pole bases in the subject parking lot (Id, pp. 24-27; O'Connor Tr., pp. 21-22). Plaintiff was responsible for shoveling and leveling the concrete as it was poured from a concrete truck (Id., pp. 27-28). In order to pour the concrete for the base of a light pole, the concrete truck would back up to the excavated hole, the chute would be extended into the hole and then the concrete would be poured from the truck (Id., p. 28). When the encased form in the hole filled up, the workers would tell the driver of the concrete truck to stop the pouring (Id., pp. 28-29).

Plaintiff was working with another Commodore employee named Michael Schutt when the incident occurred (Id., pp. 31-32). At that time, plaintiff was in the process of checking and preparing a wooden form for a light pole base. The form had been set in a hole that was four feet wide and five feet deep (Id., p. 35). When Erickson was preparing the form, he noted that there was a concrete truck in the vicinity (Id., p. 40). The truck was stopped about twenty feet away from the hole where plaintiff and Schutt were working and the rear of the truck was closest to them (Id., pp. 41-42). Plaintiff was unable to recall the color of the truck or the cab (Id., pp. 38, 42).

Plaintiffs co-worker, Michael Schutt testified that there was only one concrete truck on site on the date of plaintiffs accident (Schutt Tr., p. 20). Specifically, Shutt testified, in pertinent part, as follows:

Q: Was there one concrete truck involved in the curb pours or more than one?

A: I think one.

***

Q: Could you describe the truck that was involved in the pour of the curbs that day?

A: Well, there was — it was a regular concrete truck. They got the big barrel on them. It said Elite and Cross Concrete on it. It had Elite. It had, like, Elite Concrete and Cross Concrete, the sign on the truck.

Q: So it's your recollection that it said both Elite Concrete and Cross on this truck?

A: Yeah, I wrote them both down, so — whether they had them both, and one works for the other in, like, I'm not totally positive, but that's how I have it written down here.

Q: Other than what you have written down, do you have any recollection, independent of what you have written, as to what it said on the truck that day?

A: No. I just wrote down what I wrote down that day.

Q: Do you have any independent recollection of what color the truck was that was involved —

A: Green and gray.

Q: — that did the pouring that day?

A: I'd say, green and gray.

Q: Do you recall any writing at all on the truck?

A: To my best recollection, if you want to pin me down, I would say, Cross.

Q: What are you basing that on? Is that based on what you wrote down?

A: I got written down Cross. I'm trying to — it's three years ago. I'm trying to definitely remember the name on the thing, but I'm almost positive it would be Cross, if you want to do it like that.

Q: You, also, mentioned Elite. Do you know where you got that name from?

A: Well, after this happened, I'm trying to figure out who's responsible, `cause supposedly that's part of my job. So, I guess, I might have even got that from the GC Turner, maybe, because when I went in to fill out the accident report, I had to find out all this stuff, so I could know what the heck was going on. (Schutt Tr., pp. 20-22)

Schutt also testified that it is the responsibility of the cement truck operator to secure the cement chute on the truck (Id., p. 79).

Plaintiff testified that he was standing and bending over the hole with his back to the concrete truck just before the incident occurred (Erickson Tr., pp. 50-51). He was struck from behind by "something" that made contact with the upper part of his back and knocked him off balance (Id., pp. 53-55). Plaintiff fell into the hole (Id., p. 55). Plaintiff did not know what struck him, but was later told by his co-worker, Michael Schutt, that he had been struck by the chute from the cement truck (Id., p. 53). Plaintiff testified that no warning sound was made by the truck as it backed up (Erickson Tr., p. 191).

In bringing this action against defendants, Cross, Elite and Turner, plaintiff alleges negligence and violations of Labor Law §§ 200, 240(1) and 241(6). Specifically, plaintiff alleges that he was injured as a result of being struck in the back by the "chute" of a concrete...