McLean v. 405 Webster Ave. Assocs.
| Decision Date | 09 August 2010 |
| Docket Number | No. 18615/07.,18615/07. |
| Citation | 28 Misc.3d 1219,2010 N.Y. Slip Op. 51396,957 N.Y.S.2d 637 |
| Parties | Marcus McLEAN, Plaintiff, v. 405 WEBSTER AVENUE ASSOCIATES, Park Place Management Corp., Real Property Associates Management Corp., Stephen Gifford, Linear Technologies, Inc., Mastec Incorporated, Verizon New York, Inc. and Verizon Communications, Inc. d/b/a Verizon, Defendants. |
| Court | New York Supreme Court |
This decision and order rules on eight motions and cross-motions for various relief in the instant action. Plaintiff Marcus McLean (McLean) claims injuries as a result of being struck by a falling object while installing “microduct” during a building alteration, and moves, pursuant to CPLR Rule 3212, for partial summary judgment on liability with respect to his Labor Law §§ 240(1) and 241(6) causes of action.
Defendants Verizon New York, Inc. and Verizon Communications, Inc. d/b/a Verizon (collectively “Verizon”) move, pursuant to CPLR Rule 3212, for summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against them.
Defendant Mastec Incorporated (Mastec) moves, pursuant to CPLR Rule 3212, for summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against it.
Defendant/third-party plaintiff Linear Technologies, Inc. (Linear) moves for: summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against it, pursuant to CPLR Rule 3212; contractual indemnification against third-party defendant/second third-party defendant Original Communications, Inc.; and, a declaration that Linear is an additional insured under Original's insurance policy with second third-party defendant National Grange Mutual Insurance Company (National Grange) or, alternatively, for summary judgment, pursuant to CPLR Rule 3212, against Original due to Original's breach of contract by its failure to procure liability insurance to cover Linear.
Third-party defendant Original cross-moves for summary judgment, pursuant to CPLR 3212, for dismissal of plaintiff's complaint and the third-party and second third-party complaints against it.
Defendants/second third-party plaintiffs 405 Webster Avenue Associates and Real Property Associates Management Corp. (collectively “405 Webster”) move for: contractual indemnification against Linear and Original; and, a declaration that National Grange is obligated to defend and indemnify 405 Webster, pursuant to an additional insured endorsement in National Grange's policy with Original.
In a separate cross-motion, defendants/second third-party plaintiffs 405 Webster cross-move, pursuant to CPLR Rule 3212, for summary judgment and dismissal of plaintiff's complaint and all cross-claims asserted against 405 Webster.
Second third-party defendant National Grange cross-moves, pursuant to CPLR 3212, for summary judgment and dismissal of 405 Webster's second third-party complaint against it and all cross-claims asserted against it.
The Court notes that defendants' respective motions ostensibly move for summary judgment and dismissal of all cross-claims against them. However, many of the cross-claims alleged in the various pleadings are not discussed in the respective motion papers. This decision and order will only address the viability of cross-claims which are actually addressed in the respective motion papers. Anything not addressed by the Court is denied without prejudice.
Background and procedural history
The instant action arises from personal injuries sustained by plaintiff, on April 18, 2007, while installing “microduct” in a four-story apartment building owned and managed by 405 Webster, located at 405 Webster Avenue, New Rochelle, New York (the building or the premises). Prior to the accident, on or about January 11, 2007, Verizon and 405 Webster entered into a licensing agreement in which 405 Webster agreed to allow Verizon to install fiberoptic cable in the building, to provide the 25 apartment units in the building with access to Verizon's combination cable television/internet/telephone service, marketed as “FiOS.” Verizon, after entering into the licensing agreement, hired Mastec to install microduct throughout the premises. The microduct acts as protective conduit housing the FiOS cable. Verizon retains subcontractors to install microduct conduit, but, as required by union contract, uses only Verizon employees to install the actual FiOS cable inside the microduct conduit.
Mastec, after executing the contract with Verizon to install the microduct, hired Linear to install the microduct at the premises. Thereafter, Linear conducted a “site survey” of the building to determine, among other things, the equipment and materials that would be needed to perform the installation work, taking into account the building's layout. Representatives of Verizon, Mastec, and 405 Webster were present during the site survey. Ultimately, they determined that the microduct conduit and FiOS cable would be routed through several abandoned dumbwaiter shafts, which ran up into the building from the basement. Linear, after it conducted the site survey, hired Original, plaintiff's employer, to perform the actual microduct installation work at the premises.
On April 18, 2007, the day of the accident, plaintiff and several Original co-workers installed microduct in another building located “upstate off of the Palisades Parkway [McLean EBT, p. 93, lines 16–17].” Toward the end of the day, Kevin Lewis, President and owner of Original, asked these workers if they were willing to work additional hours on a second project, at the subject building, to earn extra money [McLean EBT, p. 93]. Plaintiff McLean, his supervisor Bruce Thompson, Jonathan Brailey and another Original employee known as “Pops” agreed to perform the second project, installing microduct at 405 Webster Avenue [McLean EBT, p. 96]. Although other Original workers had already installed microduct in parts of the premises, this was the first time that plaintiff had ever been to the building [McLean EBT, p. 96].
Upon arriving at the premises, plaintiff and Brailey were assigned the task of installing microduct into one set of apartments while Pops and Thompson installed microduct into another set of apartments [McLean EBT, pp. 99–100]. Plaintiff and Brailey were directed to run microduct from the basement of the building up dumbwaiter shaft “F” and then into individual apartments on different floors of the building [McLean EBT, p. 111; p. 120]. According to Stephen Gifford (Gifford), President of 405 Webster Avenue, the dumbwaiter shafts were out of use for years and the tenants did not have access to the dumbwaiter shafts in their apartments [Gifford EBT, p. 59].
Plaintiff McLean and Brailey measured the amount of microduct they would need to run into each apartment and cut the microduct to length [McLean EBT, p. 110]. Thereafter, Brailey drilled a hole through the wall in an apartment on the first floor of the building into the dumbwaiter shaft and lowered a string down the shaft to the basement, while plaintiff, in the basement, drilled a hole above a doorway leading into the dumbwaiter shaft and ran microduct along the basement ceiling through this hole [McLean EBT, pp. 125–126]. Then, plaintiff taped the microduct to the string and Brailey began to pull the microduct up the shaft [McLean EBT, p. 126]. According to plaintiff, as Brailey pulled the microduct up the shaft, he stood on top of an abandoned three to four foot high wooden dumbwaiter cart inside the dumbwaiter shaft to help feed microduct up the shaft [McLean EBT, pp. 115, 140]. Thus, if the microduct caught on something, plaintiff would pull it back down a little to free it [McLean EBT, pp. 129–140; 135–137]. Plaintiff claims that, prior to beginning the work, he asked the building superintendent about taking the cart out of the shaft and was told that it could not be removed [McLean EBT, p. 109]. Further, plaintiff testified that he shined a flashlight up the shaft and saw a rope and old wires [McLean EBT, p. 141]. However, according to plaintiff, he could not see beyond the second floor level because it was too dark [McLean EBT, p. 142].
Prior to the accident, plaintiff and Brailey ran microduct up the shaft into apartments on the first and second floors of the building. The accident occurred as the workers attempted to run microduct up the shaft to an apartment on the third floor. Specifically, while plaintiff stood on the dumbwaiter cart in the shaft feeding the microduct up to Brailey on the third floor, a heavy object fell down the shaft and struck plaintiff in the neck area, causing various injuries [McLean EBT, pp. 157–163]. Further, plaintiff testified that immediately prior to the accident, he heard a “rumble” [McLean EBT, p. 538, line 17] coming from up the shaft, that he had no recollection of being struck by the object, and the last thing he remembered prior to waking up in the hospital was watching the microduct being pulled up the shaft [McLean EBT, pp. 162–163]. Also, plaintiff testified that he did not know what struck him, but was told by Brailey while he was in the hospital that he was struck by a metal bucket filled with dried concrete [McLean EBT, p. 171].
Thompson testified that immediately after the accident he heard Brailey screaming and he ran down to the basement and found Brailey holding plaintiff [Thompson EBT, pp. 144–146]. Also, Thompson testified that he noticed a broken rope in the elevator shaft and saw “the big weight that holds up the [dumbwaiter] crashed down on the [dumbwaiter] shaft itself [Thompson EBT, p. 147, lines 7–9]. Further, Thompson testified that plaintiff told him that he was inside the dumbwaiter and pulled on a rope, “and when he pulled on the rope, he did not know that the weight was coming down and by the time he looked up, the weight landed on him and knocked them [him] back down out of the dumbwaiter [Thompson EBT, p. 148, lines...
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... ... Corp., Marburt Holding Corp., f/k/a 1125 Assocs., Inc., and Plaza Constr. Corp., index no. 113242/2008 ... of this argument, American puts forth the case of McLean v 405 Webster Ave. Assoc. (28 Misc. 3d 1219[A], *27 [SupCt, ... ...