Gunn v. Are-East River Sci. Park, LLC
| Decision Date | 24 October 2011 |
| Docket Number | INDEX NO. 110466-09,MOTION SEQ. NO. 003 |
| Parties | JOHN T. GUNN and ANN GUNN, as Co-Guardians for CHRISTOPHER GUNN, an incapacitated Person, Plalntlff(s), v. ARE-EAST RIVER SCIENCE PARK, LLC, TURNER CONSTRUCTION COMPANY and SITE SAFETY, LLC, Defendant(s). SITE SAFETY LLC, Third-Party Plaintiff(s), v. FALCON STEEL COMPANY, INC. and HELMARK STEEL, INC., Third-Party Defendant(s) ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY, Second Third-Party Plalntlff(s), v. HELMARK STEEL, INC., Second Third-Party Defendant(s). |
| Court | New York Supreme Court |
PRESENT: HON. MANUEL J. MENDEZ
Justice
Upon the foregoing papers, it is Ordered that third-party/second third-party defendant HELMARK STEEL INC.'s motion for summary Judgment pursuant to CPLR §3212, for an Order dismissing the Third-Party Summons and Complaint by SITE SAFETY, LLC, and for dismissal of those causes of action in the Second-Third Party Summons and Complaint by ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY asserted against HELMARK STEEL INC., and to enforce it's cross-claims for contractual and common law indemnification against FALCON STEEL COMPANY, INC., is decided in accordance with the memorandum decision filed herewith.
Accordingly, it is ORDERED that Motion Sequence 003, third-party/second third-party defendant HELMARK STEEL INC.'s, motion for summary judgment pursuant to CPLR §3212, for an Order dismissing the Third-Party Summons and Complaint by SITE SAFETY, LLC, and for dismissal of those causes of action in the Second-Third Party Summons and Complaint by ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY asserted against HELMARK STEEL INC., and to enforce it's cross-claims for contractual and common law Indemnification against FALCON STEEL COMPANY, INC. is granted only as to the Third Cause of Action in the Second Third Party Action, which is severed and dismissed. The action shall continue as to the remaining causes of action.
This constitutes the decision and order of this court.
Justice
JOHN T. GUNN and ANN GUNN, as Co-Guardians for CHRISTOPHER GUNN, an incapacitated person, Plalntlff(s),
v.
ARE-EAST RIVER SCIENCE PARK, LLC, TURNER CONSTRUCTION COMPANY and SITE SAFETY, LLC, Defendant(s).
SITE SAFETY LLC, Third-Party Plalntlff(s),
v.
FALCON STEEL COMPANY, INC. and HELMARK STEEL, INC., Third-Party Defendant(s).
ARE-EAST RIVER SCIENCE PARK, LLC and TURNER CONSTRUCTION COMPANY, Second Third-Party Plalntiff(s),
v.
HELMARK STEEL, INC., Second Third-Party Defendant(s).
Christopher Gunn was a 28 year old journeyman iron worker, that worked as part of a raising gang working on the plaza level of a building being constructed on behalf of ARE-East River Science Park, LLC. The building was to become a laboratory and office complex located near Bellevue Hospital on East 28th and 29th Street, between First Avenue and the FDR Drive. On April 29, 2008, Mr. Gunn was as a "tag line man" in the raising gang working on the plaza level of the worksite, which was approximately 23 to 29 feet above the basement level. The raising gang was attempting to install the tower crane grillage, a structural steel assembly on which a tower crane would be erected. Most of the plaza level was covered with metal decking, however approximately 23 feet away from where the raising gang was working, there was an approximately 30 inch wide open gap near the periphery. The gap was not covered and there was no decking, planking or safety netting.
The raising gang was attempting to install intermediate beams, which were smaller cross-beams perpendicular to the parallel north-south header beams. They had been directed to connect a beam on the western side and then force it into place on the eastern side of the building. Two spud wrenches were placed in the western connection instead of bolts to hold the steal beam in place and Mr. Gunn was directed to use a chain hoisting apparatus, known as a "come along," to bring the beam into position at theeastern end. He sat on the header beam near the eastern connection and attempted to force the beam into place using the "come along" to pull it into position. When the eastern end of the beam was within six inches of Its final position, he was directed by his foreman to release the "come along." After he released the "come along," the beam started to swing and pick up speed, pulling the spud wrenches out of the western connection and causing them to fail as a securing device. A gusset plate attached to the beam caught his tool belt and pulled him from the header. Although he was wearing a safety belt and harness with a lanyard he had not "tied off," however, there were no lifelines, stanchions or other points in the area to affix the harness. He lost his grip on the beam as it was bucking up and down, and fell through the opening in the metal decking approximately 23 to 29 feet, striking his head and neck on the basement level. Amongst the alleged injuries are a severed spinal cord, paraplegia and traumatic brain damage.
ARE-East River Science Park, LLC (hereinafter referred to as "ARE-East"), the owner of the property contracted with Turner Construction Company to serve as construction manager and contractor. Turner Construction Company (hereinafter referred to as "Turner") contracted with Site Safety, LLC, as a consultant to provide services concerning compliance with safety regulations and a site safety manager. ARE-East and Turner also contracted with Helmark Steel Inc., to fabricate and erect the structural steel and decking at the project. Mr. Gunn was employed by Falcon Steel Company, Inc., which subcontracted with Helmark Steel, Inc. to erect the steel and decking at the construction project.
Motion sequence 003, is the motion by third-party/second third-party defendant Helmark Steel Inc., (hereinafter referred to as "Helmark") for summary judgment pursuant to CPLR §3212. Helmark seeks an Order dismissing the Third-Party Summons and Complaint by Site Safety, LLC, and those causes of action in the Second-Third Party Summons and Complaint by ARE-East and Turner asserted against Helmark, also to enforce Helmark's cross-claims for contractual and common law indemnification against Falcon Steel Company (hereinafter referred to as "Falcon").
Falcon, opposes Helmark's motion claiming there remain issues of fact concerning negligence which includes preclusion as to common law and contractual indemnification. Falcon claims that the purchase order with Helmark is violative of General Obligations Law 5-322.1 and claims that Helmark has not met its burden of proof that the exclusion in the insurance policy issued to Falcon is a bar to cross-claims based on anti-subrogation principles.
ARE-East and Turner, oppose Helmark's motion claiming there remain issues of fact concerning negligence which prevent summary judgment as to their cross-claims for common law indemnification. ARE-East and Turner claim that common law indemnification requires proof of negligence beyond statutory liability and ARE-East and Turner were not negligent.
Motion sequence 004, is the motion by the plaintiffs for summary judgment on liability pursuant to Labor Law §240[1], §241[6] and §200, they seek to have this matter set down for a trial on damages. Plaintiffs claim that there are no issues of fact.
Site Safety LLC, partially opposes the plaintiffs' motion. Site Safety, LLC claims there is a March 5, 2010 stipulation , signed on behalf of the plaintiffs discontinuing their causes of action with prejudice, against Site Safety, LLC, "ONLY."
ARE-East and Turner, oppose the motion claiming that issues of fact exist as to the plaintiff's compliance with OSHA Subpart R and pursuant to Labor Law §240[1] as to whether the plaintiff was the sole and proximate cause of his injuries and a "recalcitrant worker." ARE-East and Turner claim plaintiff is not entitled to summary judgment pursuant to Labor Law §241[6] and §200, because there remain Issues of fact concerning comparative negligence and the industrial code violations cited do not apply to the facts of this case.
Falcon, opposes plaintiffs' motion claiming that issues of fact exist as to the Labor Law §240[1] and §241[6] causes of action. Falcon claims there remain issues of fact concerning comparative negligence and whether Christopher Gunn was the sole proximate cause of his injuries which would preclude summary judgment.
Motion sequence 005, is the motion by defendant and third-party defendant, Site Safety, LLC, for summary judgment dismissing plaintiff's causes of action pursuant to the March 5, 2010 stipulation. Site Safety, LLC seeks an Order dismissing ARE-East and Turner's cross-claims for tort contribution, common law and contractual indemnity and breach of contract. Site...
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