Padron v. Granite Broadway Dev. LLC

• Decision Date: 15 October 2020
• Docket Number: Index No. 157049/2013
• Citation: 2020 NY Slip Op 33422 (U)
• Court: New York Supreme Court
• Parties: CARLOS PADRON and ESTELLA PADRON, Plaintiffs v. GRANITE BROADWAY DEVELOPMENT LLC, MARRIOTT INTERNATIONAL, INC., CNY BUILDERS 1717 LLC, and PARKVIEW PLUMBING, INC., Defendants GRANITE BROADWAY DEVELOPMENT LLC and CNY BUILDERS 1717 LLC, Third Party Plaintiffs v. PARKVIEW PLUMBING, INC., Third Party Defendant GRANITE BROADWAY DEVELOPMENT LLC and CNY BUILDERS 1717 LLC, Second Third Party Plaintiffs v. TRANSCONTINENTAL CONTRACTING, INC., d/b/a TRANSCONTINENTAL STEEL, Second Third Party Defendant PARKVIEW PLUMBING, INC., Third Third Party Plaintiff v. PROGRESSIVE FIRE SPRINKLER CORP. formerly known as ACTIVE FIRE SPRINKLER CORP., ACTIVE FIRE SPRINKLER NYC, LLC, and R & S UNITED SERVICES, INC., Third Third Party Defendants GRANITE BROADWAY DEVELOPMENT LLC and CNY BUILDERS 1717 LLC, Fourth Third Party Plaintiffs v. R & S UNITED SERVICES, INC., PROGRESSIVE FIRE SPRINKLER CORP. formerly known as ACTIVE FIRE SPRINKLER CORP., and ACTIVE FIRE SPRINKLER NYC, LLC, Fourth Third Party Defendants

2020 NY Slip Op 33422(U)

CARLOS PADRON and ESTELLA PADRON, Plaintiffs
v.
GRANITE BROADWAY DEVELOPMENT LLC, MARRIOTT INTERNATIONAL, INC.,
CNY BUILDERS 1717 LLC, and PARKVIEW PLUMBING, INC., Defendants

GRANITE BROADWAY DEVELOPMENT LLC and CNY BUILDERS 1717 LLC, Third Party Plaintiffs
v.
PARKVIEW PLUMBING, INC., Third Party Defendant

GRANITE BROADWAY DEVELOPMENT LLC and CNY BUILDERS 1717 LLC, Second Third Party Plaintiffs
v.
TRANSCONTINENTAL CONTRACTING, INC., d/b/a TRANSCONTINENTAL STEEL, Second Third Party Defendant

PARKVIEW PLUMBING, INC., Third Third Party Plaintiff
v.
PROGRESSIVE FIRE SPRINKLER CORP. formerly known as ACTIVE FIRE SPRINKLER CORP.,
ACTIVE FIRE SPRINKLER NYC, LLC, and R & S UNITED SERVICES, INC., Third Third Party Defendants

GRANITE BROADWAY DEVELOPMENT LLC and CNY BUILDERS 1717 LLC, Fourth Third Party Plaintiffs
v.
R & S UNITED SERVICES, INC., PROGRESSIVE FIRE SPRINKLER CORP. formerly known as
ACTIVE FIRE SPRINKLER CORP., and ACTIVE FIRE SPRINKLER NYC, LLC, Fourth Third Party Defendants

Index No. 157049/2013

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: October 20, 2020
October 15, 2020

NYSCEF DOC. NO. 569

DECISION AND ORDER

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LUCY BILLINGS, J.S.C.:

In this action under the New York Labor Law, defendants Granite Broadway Development LLC, the owner of the building under construction where plaintiff Carlos Padron was injured, and CNY Builders 1717 LLC, the construction manager, move for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). They also move for summary judgment on their claims for

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indemnification against third party defendant Parkview Plumbing, Inc., a plumbing contractor on the construction project, and against second third party defendant Transcontinental Contracting, Inc., Padron's employer. C.P.L.R. § 3212(b) and (e). Third third party defendant R & S United Services, Inc., a Steam fitting contractor on the construction project, separately moves for summary judgment dismissing the third third party complaint against R & S United Services. C.P.L.R. § 3212(b). Second third party defendant Transcontinental Contracting separately moves for summary judgment dismissing the second third party complaint. Id. Finally, defendant-third party defendant Parkview Plumbing separately moves for summary judgment dismissing the complaint and for summary judgment on Parkview Plumbing's third third party complaint. Id.

I. BACKGROUND

Plaintiff Carlos Padron testified at his deposition that on July 19, 2013, he was an ironworker employed by Transcontinental Contracting working on defendants' construction project at 1717 Broadway, New York County. Transcontinental Contracting was installing "handrails, staircases, any type of miscellaneous iron on the project." Aff. of Steven D. Zecca Ex. N, at 19.

At approximately 8:00 a.m. that day, Padron was working on a stairwell that ascended from the fifth to the sixth floor of the building under construction. After walking up the stairs

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carrying steel railings, he reached the landing on the sixth floor where he slipped and fell on a puddle of water. He testified that the staircase was dry as he walked toward the landing; the water was only on the landing, covering the entire landing area, which was not exposed to the elements. The landing area was approximately ten feet long, approximately three to four feet wide, and covered in water wall to wall about an inch high, "up to your heels." Id. at 84.

Padron seeks damages for the injuries sustained from his fall based on Labor Law §§ 200, 240(1), and 241(6) and negligence. His wife claims derivatively for the loss of his services.

Defendant owner and construction manager commenced a third party action against Parkview Plumbing for implied, non-contractual indemnification, contractual indemnification, and breach of a contract, including failure to procure contractually required insurance. Plaintiffs then amended their complaint to claim directly against Parkview Plumbing. Defendant owner and construction manager also commenced a second third party action against Transcontinental Contracting similarly claiming implied indemnification, contractual indemnification, and breach of a contract, including failure to procure insurance.

Parkview Plumbing commenced a third third party action against contractors Progressive Fire Sprinkler Corp., Active Fire

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Sprinkler NYC, LLC, and R & S United Services seeking implied indemnification and contribution. Defendant owner and construction manager commenced a fourth third party action against the same parties, Progressive Fire Sprinkler, Active Fire Sprinkler, and R & S United Services, seeking, like these defendants' earlier third party actions, implied indemnification, contractual indemnification, and breach of a contract, including failure to procure insurance.

II. THE MOTION BY GRANITE BROADWAY DEVELOPMENT AND CNY BUILDERS

Granite Broadway Development and CNY Builders move for summary judgment dismissing plaintiffs' Labor Law § 240(1) claim because Padron's fall was not from an elevation. These defendants seek summary judgment dismissing plaintiffs' Labor Law § 200 and negligence claims based on the absence of supervisory control by the owner or construction manager over Padron. Finally, these defendants seek summary judgment dismissing plaintiffs' Labor Law 241(6) claim on the grounds that the regulations under the statute on which plaintiffs rely are inapplicable to the circumstances of Carlos Padron's injury. CNY Builders has conceded that it was the owner's agent on the construction site and therefore subject to liability under the Labor Law. Granite Broadway Development and CNY Builders also move for summary judgment dismissing all cross-claims and counterclaims against these defendants and for summary judgment

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on their claims for contractual and implied indemnification in their third party complaint against Parkview Plumbing and second third party complaint against Transcontinental Contracting.

A. Labor Law § 240(1) Claim

Labor Law § 240(1) requires all building owners and their agents:

in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure to furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

This "statutory language must not be strained in order to encompass what the Legislature did not intend to include," Martinez v. City of New York, 93 N.Y.2d 322, 326 (1999), and must be construed considering the realities of the workplace where Padron's injury occurred. Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140 (2011).

Labor Law § 240(1) "does not cover the type of ordinary and usual peril to which a worker is commonly exposed at a construction site"; the peril must be attributable to a difference between the elevation of Padron's required work and a lower level. Buckley v. Columbia Grammar & Preparatory, 44 A.D.3d 263, 267 (1st Dep't 2007). See Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97 (2015); Brown v. New York-

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Presbyt. Healthcare Sys., Inc., 123 A.D.3d 612, 612 (1st Dep't 2014). Therefore,

Not every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.

Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 (2001). See Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 97; Brown v. New York-Presbyt. Healthcare Sys., Inc., 123 A.D.3d at 612-13. To constitute a violation of § 240(1), Padron's injury must fit within the "special hazards" contemplated by the statute. Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 97; Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916 (1999); Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501 (1993); Buckley v. Columbia Grammar & Preparatory, 44 A.D.3d at 267. The "special hazards" to which § 240(1) applies "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the 'special hazards' referred to are limited to such specific gravity-related accidents as falling from a height . . . ." Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d at 501. See Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 97; Brown v. New York-Presbyt. Healthcare Sys., Inc., 123 A.D.3d at 612.

Finally, an injury covered by Labor Law § 240(1) must flow directly not only "from the application of the force of gravity

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to an object or person," but also from a harm against which an adequate "scaffold, hoist, stay, ladder or other protective device" would have shielded the injured worker. Salazar v. Novalex Contracting Corp., 18 N.Y.3d at 139. See Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604 (2009); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 501. Plaintiffs insist that defendants failed to provide an adequate device to prevent or break Carlos Padron's fall. Even if plaintiffs may not be required to identify such a device, such a failure in any event does not "establish liability if the statute is intended to protect against a particular hazard," directly flowing from the force of gravity, but "a hazard of a different kind is the occasion of the injury." Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513 (1991).

Plaintiffs allege that Carlos Padron was injured from slipping on water and falling when walking on a wet landing. No risk from an elevation was involved. He slipped and fell from the ground level to the same ground he was standing on. He did not fall from a height. Although he testified that he was stepping up to the...