Falkenberg v. Racanelli Constr. Co.
| Citation | 2009 NY Slip Op 33398 (U) |
| Decision Date | 24 April 2009 |
| Docket Number | Index No.: 105060/05,Third-Party Index No.: 590627/06,Second Third-Party Index No.: 590547/07,Third Third-Party Index No.: 590709/07 |
| Parties | KRISTIAN FALKENBERG, Plaintiff, v. RACANELLI CONSTRUCTION COMPANY, INC., HILTON HOTELS CORPORATION and HILTON INNS, INC., Defendants. RACANELLI CONSTRUCTION COMPANY, INC., Third-Party Plaintiff, v. COOL SHEET METAL, INC. and PYRAMID AIR CONDITIONING, INC., Third-Party Defendants. COOL SHEET METAL, INC., Second Third-Party Plaintiff, v. ASA ASSOCIATES OF NEW YORK, INC., Second Third-Party Defendant. COOL SHEET METAL, INC., Third Third-Party Plaintiff, v. EVOLUTION PIPING CORP., and LINCHRIS HOTEL PARTNERS OF L.I, LLC, Third Third-Party Defendants. |
| Court | United States State Supreme Court (New York) |
[AMENDED] DECISION AND ORDER
This is an action under Labor Law §§ 200 and 241(6) arising from a 2003 accident involving plaintiff Kristian Falkenberg, a sheet metal mechanic, on a construction site in Ronkonkoma, New York, allegedly owned by the Hilton defendants. Plaintiff sued defendants Racanelli Construction Company, Inc. ("Racanelli"), Hilton Hotels Corp. and Hilton Inns, Inc. (collectively "Hilton"). Racanelli, the general contractor on the site, in turn impleaded Pyramid Air Conditioning, Inc. ("Pyramid") and its subcontractor, plaintiff's employer COOL Sheetmetal, Inc. ("COOL") as third-party defendants, claiming common law and contractual indemnity, as well as breach of agreement to secure liability insurance. Pyramid cross-claimed for contractual and common law indemnity, and for failure to procure insurance. COOL then impleaded plumbers Asa Associates of New York, Inc. ("Asa") as a second third-party defendant, then Evolution Piping Corp. ("Evolution") and Linchris Hotel Partners of L.I, LLC. ("Linchris"), the owner of the property, as third third-party defendants.
Pyramid seeks summary judgment against Racanelli. In the alternative, Pyramid seeks summary judgment against its co-third-party defendant COOL for contractual indemnification. COOL, in turn, seeks summary judgment dismissing the complaint, the third party complaint and Pyramid's cross-claims. Hilton and Linchris seek summary judgment dismissing the original complaint, the third third-party complaint and the cross-claims of Pyramid and COOL.
In this action, plaintiff claims that he injured his back on January 2, 2003, while he was working in the ground floor kitchen area of the Hilton Garden Inn under construction in Ronkonkoma, New York. He attributes the alleged injuries (herniated discs) to his tripping overa piece of pipe while carrying a 200 pound acetylene tank with his foreman, in an area he describes as being strewn with rubbish. Pyramid, an air conditioning company, had subcontracted out the sheet metal duct work on the job to COOL, plaintiff's employer. COOL owned the tanks and hand trucks, which were present at the site. Plaintiff moved the tank with the foreman, COOL's designated safety person, and they did not use a hand truck. At the time, there were trenches for piping dug into the dirt floor. None of COOL's work involved the placement of piping in the kitchen floor.
Plaintiff continued to work after the claimed accident, and did not file an accident report until three months later, after losing his job. He also submitted a claim for Worker's Compensation. In the accident report, and at the Worker's Compensation hearing, he made no mention of tripping over a piece of pipe. Instead, plaintiff alleged that he had injured his back while carrying an oxygen tank, an assertion repeated by his foreman. These tanks were used to weld the duct work for the kitchen exhaust. It was not until plaintiff's 2006 Bill of Particulars in this action that he alleged his fall was due to an accumulation of "dirt, debris and/or other foreign objects" located in his path. Exh. B, Pyramid Mot. Thereafter, during his first EBT in 2006, he added the allegation of tripping over a piece of pipe. Exh. B, pg. 60, COOL Cross-Motion.
The pipe plaintiff allegedly tripped over was not used by COOL in the HVAC work delegated to it by Pyramid, or in the air conditioning work in general as delegated to Pyramid by Racanelli, the General Contractor. The black, cast iron pipe was of a type used by plumbers. ASA Plumbing had earlier laid black pipe (albeit slightly larger in diameter) in the kitchen floor trenches prior to the alleged accident. Falkenberg EBT, pp. 75-76, Exh. C; 2007 Riha EBT, pp. 21-28, Exh. F, Pyramid Mot.. Racanelli, the general contractor, was required to employ general laborers to do daily clean up at the site, but failed to do so after December 13, 2002 and through January 2, 2003, the day plaintiff fell. Racanelli supervised the cleanup laborers. When no laborers were on site, each trade contractor was responsible for consolidating their debris in a central location, but not for cleanup. 2006 Riha EBT, pp. 29-30; Exh. E, Pyramid Mot.. The contractors discussed safety with Racanelli's job superintendent. Racanelli's project supervisor was on site daily to coordinate construction, scheduling and work performance between the trades. 2006 Riha EBT, p. 6, Exh. E, Pyramid Mot..
To obtain summary judgment, a movant must establish its cause of action or defense sufficiently to warrant the court, as a matter of law based on undisputed material facts, in directing judgment in its favor. CPLR 3212(b); see Owusu v. Hearst Communications, Inc., 52 A.D.3d 285 (1st Dep't 2008) (). A movant must support its cause with evidentiary proof in admissible form. Zuckerman v. New York, 49 N.Y.2d 557, 560-563 (1980). Once a movant has met the initial burden, the burden shifts to the party opposing the motion to establish, through admissible evidence, that judgment requires a trial of disputed material issues of fact. Id. at 560; CPLR. 3212(b). See also GTF Marketing Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 967-968 (1985) (). The adequacy or sufficiency of the opposing party's proof is not an issue until the moving party sustains its burden. Bray v. Rosas, 29 A.D.3d 422 (1st Dept. 2006). Moreover, the parties'competing contentions must be viewed "in a light most favorable to the party opposing the motion." Lakeside Constr. v. Depew & Schetter Agency, 154 A.D.2d 513, 515 (2d Dept. 1989).
(I) Common Law Indemnity
Labor Law § 200 and Negligence
The key element of a common law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is "a separate duty owed the indemnitee by the indemnitor." Raquet v. Braun, 90 N.Y.2d 177, 183 (1997), quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690) (1990). The duty that forms the basis for the liability arises from the principle that "every one is responsible for the consequences of his own negligence, and if another person has been compelled ... to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him." Id., quoting Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N.Y. 461, 468 (1892).
Pyramid has presented sufficient evidence to sustain its burden for summary judgment. Labor Law § 200 (1) codifies the common-law duty of landowners and general contractors to maintain a safe workplace. Where a claim under Labor Law § 200 is based upon alleged defects or dangers arising from a subcontractor's methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work. Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 (1998) (emphasis in original), quoting Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317(1981); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 (1993). General supervisory authority is insufficient to constitute supervisory control. O'Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 226 (1st Dept.2006). This concept of general vs. specific supervisory authority is key. In the O'Sullivan case, the First Department found that although the contractor's on-site safety manager may have had overall responsibility for the safety of the work done by the subcontractors, his "duty to supervise and enforce general safety standards at the work site was insufficient to raise a question of fact as to its negligence." Id.
Here, Pyramid, serving in the capacity as general contractor with respect to the HVAC work, did not control the manner in which the plaintiff performed his or her work. The undisputed material facts established by Pyramid's evidence show that the injury producing work undertaken by plaintiff was his moving a 200 pound acetylene tank. Although there remain disputed issues as to the actual cause of the alleged accident (tripping on pipe vs. lifting strain) and the extent to which plaintiff's negligence might have contributed to his own injury, the undisputed fact remains that plaintiff was moving the tank, which his work required. Pyramid did not provide COOL with the tank. Rather, COOL provided its mechanics with the tanks and "all other tools and equipment needed to do the job." Melillo Affid. ¶4, Exh. L. Nor did Pyramid provide COOL with hand carts. COOL owned the handcarts and COOL's Field Supervisor oversaw plaintiff's work. Plaintiff took no direction from Pyramid regarding the means and methods of COOL's work. Rammelkamp EBT, pp. 51-52, 55, Exh. I..
Defendant/third-party plaintiff Racanelli's evidence showing that Pyramid had general supervisory control over the HVAC project and workplace safety is not enough to defeat summary judgment on this issue....
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