Lombardi v. 79 Crosby St. LLC

• Decision Date: 13 April 2012
• Docket Number: No. 113503/09.,113503/09.
• Parties: Benedetto LOMBARDI, Plaintiff, v. 79 CROSBY STREET LLC, 246 Lafayette LLC, Crosby Street Hotel LLC and Magnetic Construction Group Corp., Defendants.
• Court: New York Supreme Court

35 Misc.3d 1220
953 N.Y.S.2d 550
2012 N.Y. Slip Op. 50796

Benedetto LOMBARDI, Plaintiff,
v.
79 CROSBY STREET LLC, 246 Lafayette LLC, Crosby Street Hotel LLC and Magnetic Construction Group Corp., Defendants.

No. 113503/09.

Supreme Court, New York County, New York.

April 13, 2012.

David Horowitz, P.C., New York, for Plaintiff.

Silverman Sclar Byrne Shin and Ano, Brown Gavalas & Fromm LLP, New York, for Defendant.

DORIS LING–COHAN, J.
BACKGROUND

This case involves a workplace accident. Motion sequence numbers 001 and 002 are consolidated for disposition. In motion sequence number 001, defendants 79 Crosby Street, LLC, Crosby Street Hotel, LLC, and 246 Lafayette LLC (Crosby defendants) move for an award of summary judgment dismissing the complaint and the cross claims, and on their contractual and common-law indemnity cross claims against defendant Magnetic Construction Group Corp. (Magnetic). In motion sequence number 002, Magnetic moves for summary judgment dismissing the complaint and the Crosby defendants' cross claims. Plaintiff Benedetto Lombardi cross-moves to amend his bill of particulars.

Plaintiff was injured on a construction site where a hotel was being built. Non-party Firmdale Hotels, PLC (Firmdale) retained Magnetic to act as construction manager. Firmdale and Magnetic entered into the AIA Document A131 CMC–2003 Standard Form Agreement Between Owner and Construction Manager (Construction Contract). According to Paul Underhill (Underhill), the vice-president of Crosby Street Hotel, LLC, Firmdale is the parent company of non-party Firmdale Holdings USA, which, in turn, owns Crosby Street Hotel, LLC. Crosby Street Hotel, LLC leased the site from 79 Crosby Street, LLC. Crosby Street Hotel, LLC also leased 246 Lafayette Street, an adjacent property, from 246 Lafayette, LLC.

Magnetic subcontracted with Urban Foundation (Urban), plaintiff's employer, to excavate the site. The subcontract states Urban's trade to be “excavation and foundations” (Crosby Motion [Crosby], Ex. L). During his deposition, plaintiff testified that he was employed as a laborer on the job site. He assisted various trades, including carpenters, builders, and masons. On January 21, 2008, he was working with the carpenters removing forms. Plaintiff testified that a form “is what they use to build the wall in order to pour concrete in, so it's kind of like building a box” (Crosby, Ex. F, at 21). One of plaintiff's daily tasks was to fetch drinks and snacks for the coffee break, which started at 2:10 in the afternoon. On the day of his injury, plaintiff began to take orders from other workers, at the accustomed time at 1:45. The last person that plaintiff took an order from was the operator of the backhoe.

Plaintiff testified that, when he began taking the coffee break orders, the break itself had not yet started, so the backhoe was excavating. The backhoe was removing dirt and loading it into a truck. When plaintiff approached the backhoe, the operator brought it to a stationary position. Plaintiff took the order and stepped back to avoid the swing of the bucket. The bucket stopped and plaintiff began to walk out of the work site. His back was to the backhoe. He heard the backhoe begin to operate again. The bucket swung and the cabin moved in unison. Plaintiff tried to get out of the machine's way. He testified that he did not have “much room to maneuver” since there was a pit to his right of 15 to 20 feet (Crosby, Ex. F, at 131). As the bucket and cabin moved, the rear of the backhoe, also called the counterweight, swivelled and hit plaintiff on the back, pushing him against a gate post and then to the ground. Plaintiff suffered broken ribs, a lacerated spleen, a collapsed lung, and a fractured scapula. Plaintiff attaches a photograph, which he says accurately depicts the kind of backhoe that struck him. It has a shovel on one end, a back that extends beyond the cabin where the operator sits, and continuous treads, that is, wheels like a tank (Cross motion, Ex. 2).

Plaintiff testified that he was supervised and directed by Urban personnel. Underhill testified that he visited the site once a month, that he attended monthly meetings held by the architect, and that no one from the Crosby defendants directed or supervised the work. Louis Guzman, Magnetic's project executive, testified that while Magnetic held safety meetings, it did not supervise the work by the subcontractors or instruct them. Magnetic was responsible for overseeing the construction to ensure that it was within budget and pursuant to plans. Guzman said that if Magnetic's onsite supervisor saw the work was not being done according to specifications, he would notify the subcontractor to remedy the defect. At and prior to the time of the accident, Magnetic's project superintendent (not Guzman) was the only Magnetic employee at the site on a daily basis.

DISCUSSION

Plaintiff asserts claims for violations of Labor Law §§ 200, 240(1), 241(6), and for common-law negligence. To obtain a grant of summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence that demonstrates that the case holds no issues of fact that can be tried (Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302 [2010] ). If the moving party succeeds in this, the other side can avert a grant of summary judgment by showing that there are material factual issues to be tried ( id.).

The Crosby defendants present evidence that the accident took place on the site belonging to 79 Crosby Street, LLC and not on the adjacent property belonging to 246 Lafayette Street, LLC. According to Guzman, construction at 246 Lafayette Street began in 2009, after plaintiff's accident on January 21, 2008. Neither plaintiff, nor Magnetic, oppose the part of the motion seeking dismissal on behalf of defendant 246 Lafayette Street, LLC. Thus, the complaint and cross claims are dismissed as against defendant 246 Lafayette Street, LLC.

Plaintiff does not oppose defendants' arguments pertaining to Labor Law §§ 240(1), 200, and common law negligence. Therefore, as explained further below, since defendants make a prima facie showing that those claims should be dismissed, such claims are dismissed against all defendants.

Defendants argue that Labor Law § 240(1), known as the Scaffold Law, cannot be maintained, since plaintiff was not engaged in any height-related activity when he was injured. The Scaffold Law, along with Labor Law § 241(6), permits property owners and contractors to be held vicariously liable for the negligence of a third party (DiFilippo v. Parkchester N. Condominium, 65 AD3d 899, 899 [1st Dept 2009]; Paul M. Maintenance, Inc. v. Transcontinental Ins. Co., 300 A.D.2d 209, 211 [1st Dept 2002] ). The Scaffold Law applies to the danger of falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501 [1993] ). Here, defendants establish, and it is not disputed, that plaintiff did not fall from a height and that he was not struck by a falling object.

“ “Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or contractor to provide construction ... workers with a safe place to work” (Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 [1993] ). Claims made pursuant to Labor Law § 200 fall into two categories: those where the plaintiff's injury is caused by the manner or method of performing the work, and those where the injury is caused by a dangerous or defective condition at the job site (Urban v. No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009] ). Where the alleged failure to provide a safe workplace arises from the methods or materials used by the injured worker, a defendant can be held liable if it directly supervised the worker, controlling the manner in which the injury-producing work was done (Hughes v. Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007] ).

Here, defendants show, and it is not disputed, that they did not control or supervise the work leading to the injury ( id.;see also Singh v. Black Diamonds LLC, 24 AD3d 138, 140 [1st Dept 2005] ). General supervisory authority is not enough to constitute the kind of control needed to hold a party liable ( id.). An owner or a general contractor's presence and encouragement, or the fact that it holds safety meetings, or that it has the power to stop the work for safety reasons does not amount to the requisite level of supervision (Hughes, 40 AD3d at 307;Smith v. McClier Corp., 22 AD3d 369, 371 [1st Dept 2005]; Buccini v. 1568 Broadway Assoc., 250 A.D.2d 466, 468–469 [1st Dept 1998] ).

Where the workplace is rendered unsafe by a dangerous condition, an owner or contractor is liable if it created the dangerous condition or if it had actual or constructive notice of the condition and failed to remedy it (Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011]; Minorczyk v. Dormitory Auth. of the State of NY, 74 AD3d 675 [1st Dept 2010] ). In cases where the plaintiff is injured due to a dangerous condition, whether a defendant controlled or supervised the manner in which plaintiff worked is irrelevant (Seda v. Epstein, 72 AD3d 455, 455 [1st Dept 2010] ). Defendants establish, and it is not disputed, that they had no notice of any dangerous condition on the job site and that they created none.

The Crosby defendants point to the Construction Contract provision that the contractor “shall supervise and direct the Work” and “shall be solely responsible for and have control over construction means, methods, techniques ...” (Crosby, Ex. H, ¶ 3.3.1). Where, as here, the contractor does not direct and control the work, this provision does not render the contractor liable for accidents to workers ( see McCarthy v. Turner Constr., Inc., 17 NY3d 369, 377–378 [2011],affg72 AD3d 539 [1st Dept 2010], affg 24 Misc.3d 1245[A], 2009 N.Y....