Lamela v. City of New York, CV-06-5366(BMC)(SMG).

• Decision Date: 16 June 2008
• Docket Number: No. CV-06-5366(BMC)(SMG).,CV-06-5366(BMC)(SMG).
• Parties: Jose LAMELA and Consuela Lamela, his wife, Per Quod, Plaintiffs, v. CITY OF NEW YORK and Urbitran Associates, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

560 F.Supp.2d 214

Jose LAMELA and Consuela Lamela, his wife, Per Quod, Plaintiffs, v. CITY OF NEW YORK and Urbitran Associates, Inc., Defendants.

No. CV-06-5366(BMC)(SMG).

United States District Court, E.D. New York.

June 16, 2008.

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Gary R. Novins, Richard M. Winograd, Ginarte, O'Dwyer & Winograd, LLP, New York, NY, for Plaintiffs.

Howard K. Fishman, John Thomas Rafter, French & Rafter LLP, Melissa Pressley, New York City Law Department, New York, NY, for City of New York.

Lori S. Schwarz, Zetlin & DeChiara LLP, New York, NY, for Urbitran Associates, Inc.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

This is a diversity action for personal injuries and loss of consortium. Plaintiff Jose Lamela alleges he was injured while working on a site owned by defendant the City of New York and under the supervision and control of defendant Urbitran Associates, Inc. Plaintiff claims that both defendants violated New York State Labor Laws § 200, § 241, and were negligent under common law. Presently before this Court are defendants' respective motions for summary judgment as to plaintiffs' claims and defendants' cross-claims. Because plaintiffs have failed to produce evidence of any facts that could support a finding of liability, defendants' motions for summary judgment as to the plaintiffs' claims are granted. Defendants' motions for summary judgment as to their cross-claims are denied as moot.

BACKGROUND

Defendant, the City of New York ("City"), through its agent, the Department of Design and Construction ("DDC"), entered into a contract with DeMicco Brothers, Inc. ("DeMicco"), for the reconstruction of a section of Flushing Avenue in Brooklyn, New York in January of 2003. The reconstruction of Flushing Avenue required installation of a new sewer pipe on a portion of Flushing Avenue between Broadway and Humboldt Street. Plaintiff was a foreman for DeMicco overseeing the work. The City had also entered into a contract with defendant Urbitran Associates, Inc. ("Urbitran") for "Resident Engineering Inspection Services" for the project.

As foreman, plaintiff took direction from the DeMicco superintendents on-site. Plaintiff or another DeMicco foreman had to determine how to fill the area between the panels reinforcing the vertical walls of the excavation and the ground behind them. The installation of the sheeting and shoring system was also the responsibility of a DeMicco foreman. In addition, the City's contract with DeMicco stated that DeMicco was to choose the "means and methods of construction," which was defined as "the labor, materials, temporary structures, tools, plant and construction equipment, and the manner and time of their use necessary to accomplish the result intended by this Contract."

Urbitran had inspectors on-site everyday to oversee DeMicco's work. In particular, it had a Resident Engineer, who visited the site throughout the day, supervise the work. The Resident Engineer had the right to reject DeMicco's choice of the means and methods of construction if he believed they would create a hazard.

The incident that is the subject of this action occurred on August 17, 2005. Plaintiff was with his crew performing the backfilling of the excavation for the new sewer pipe. Plaintiff stood approximately one foot from the edge of the trench while speaking to his workers, who were within the trench itself. The trench was about ten feet deep, six feet wide, and 250-350 feet long. Sheeting had been placed along the walls of the excavation to prevent their collapse, and fill had been deposited on the exterior side of the sheeting to the extent that the fill was flush with the ground. When called by a worker behind him, plaintiff turned to respond, shifting his weight. The ground beneath his right foot collapsed and his right leg sunk into the ground up to his knee. Plaintiff toppled backward into the trench, though his leg remained stuck in the ground, keeping him suspended in the air upside-down, parallel to the wall of the trench. Within fifteen or twenty seconds plaintiffs co-workers were able to free him. Plaintiff was then taken by ambulance to the hospital for treatment of his injuries.

Neither plaintiff nor his co-worker, Pedro Bouzas, saw the hole until the incident. Mr. Bouzas testified that, prior to the incident, when he saw the area, the dirt was "hard, dry."

In their initial complaint, plaintiffs sued the City and a number of its departments for common law negligence and violations of New York State Labor Law § 200¹, § 240, and § 241². Plaintiff sought $5 million in damages for his injuries and his wife, Consuela Lamela, requested $1 million for loss of consortium. Plaintiffs filed an amended complaint, adding a cause of action against Urbitran, and Urbitran and the City each cross-claimed.

Plaintiffs have subsequently narrowed their claims, withdrawing those under Labor Law § 240, and for their § 241(6) claim, they rely solely on Industrial Code regulation § 23-4.2(h).³

DISCUSSION

I. Summary Judgment Standard

A court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of demonstrating the non-existence of any genuine issue of material fact falls on the party moving for summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995). In determining the applicability of a grant of summary judgment, the court shall "resolve all ambiguities and draw all reasonable inferences against the moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If a moving party meets their burden, the non-moving party must then present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The court may not "weigh the evidence, or assess the credibility of witnesses, or resolve issues of fact." Rodriguez, 72 F.3d at 1061. If there is any evidence from which a reasonable inference could be drawn in favor of the non-moving party, summary judgment is impermissible. Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir.1994).

II. Labor Law § 200 and Common Law Claims

New York State Labor Law § 200 is a codification of the common law duty on the part of landowners and general contractors to maintain a safe workplace. Wojcik v. 42nd Street Dev. Project, Inc., 386 F.Supp.2d 442, 455-56 (S.D.N.Y.2005); Ross v. Curtis-Palmer Hydro-Elec. Co. et al., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). As a result, it is appropriate to analyze the common law and § 200 claims simultaneously. Wojcik, 386 F.Supp.2d at 456.

Both control and notice — either actual or constructive — are required in order to impose liability on a party under § 200. Comes v. New York State Elec. and Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110 (1993). Although some earlier decisions accepted either notice or control, the New York State Court of Appeals "has not adopted the reasoning of Nagel [v. Metzger, 103 A.D.2d 1, 478 N.Y.S.2d 737 (4th Dep't 1984)] and imposed liability under the statute solely because the owner had notice of the allegedly unsafe manner in which the work was performed." Comes, 82 N.Y.2d at 878, 609 N.Y.S.2d 168, 631 N.E.2d 110 (overruling Nagel).

A. Control

"Where a claim under § 200 arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation." Palen v. ITW Mortgage Investments III, Inc., No. 99 Civ 3850, 2003 WL 1907980, *5-6 (S.D.N.Y. Apr. 17, 2003) (internal quotations omitted); Bailey v. Bethlehem Steel Corp., No. 90 Civ 1064s, 1994 WL 586944, *7 (W.D.N.Y. Oct. 4, 1994); Ross, 81 N.Y.2d at 504, 601 N.Y.S.2d 49, 618 N.E.2d 82. "An owner or general contractor does not supervise or control the performance of the work for the purposes of § 200 merely by presenting ideas and suggestions, making observations and inquiries, and inspecting the work." Poulin v. E.I. Dupont DeNemours and Co., 883 F.Supp. 894, 899 (W.D.N.Y.1994). "Absent any evidence that [the accused party] gave anything more than general instructions as to what needed to be done, as opposed to how to do it, [they] cannot be held liable under § 200 for common law negligence." O'Sullivan v. IDI Const. Co., 28 A.D.3d 225, 226, 813 N.Y.S.2d 373 (1st Dep't), aff'd, 7 N.Y.Sd 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 (2006).

Applying these principles to the instant case, although the City's employees visited the site semi-regularly, sometimes noting safety issues to be fixed, there is no evidence to support the claim that the City instructed plaintiff or DeMicco on how to perform the work. The City's personnel admit to having a somewhat regular presence at the worksite, but "retention of general supervisory control, presence at the worksite, or authority to enforce general safety standards is insufficient to establish the necessary control." Soshinsky v. Cornell University, 268 A.D.2d 947, 703 N.Y.S.2d 550 (3rd Dep't 2000). Plaintiffs' argument that the City was "on notice" and "maintained control" over the site is insufficient. The facts show nothing more than presence and supervisory control, not the specific exercise of control over the particular condition that gave rise to this incident. Since there is no evidence that the City did anything that would demonstrate control over the conditions that...