Pollack v. Safeway Steel Products, Inc.

• Decision Date: 29 September 2006
• Docket Number: No. 03 Civ. 4067(WCC).,03 Civ. 4067(WCC).
• Citation: 457 F.Supp.2d 444
• Parties: Emil POLLACK, Plaintiff, v. SAFEWAY STEEL PRODUCTS, INC., March Associates, Orangeburg Holding, LLC and Lowe's Home Centers, Inc., Defendants. Lowe's Home Centers, Inc., Third-Party Plaintiff, v. CMC Concrete Masonry, Third-Party Defendant. Safeway Steel Products, Inc., Second Third-Party Plaintiff, v. CMC Concrete Masonry, Second Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

Page 444

457 F.Supp.2d 444

Emil POLLACK, Plaintiff, v. SAFEWAY STEEL PRODUCTS, INC., March Associates, Orangeburg Holding, LLC and Lowe's Home Centers, Inc., Defendants.

Lowe's Home Centers, Inc., Third-Party Plaintiff, v. CMC Concrete Masonry, Third-Party Defendant.

Safeway Steel Products, Inc., Second Third-Party Plaintiff, v. CMC Concrete Masonry, Second Third-Party Defendant.

No. 03 Civ. 4067(WCC).

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

September 29, 2006.

COPYRIGHT MATERIAL OMITTED

Fellows, Hymowitz & Epstein, P.C., Steven R. Hymowitz, Esq., of counsel, New City, NY, for Plaintiff.

Colucci & Gallaher, P.C., Todd C. Bushway, Esq., of counsel, Buffalo, NY, for Defendant/Second Third-Party Plaintiff Safeway Steel Products, Inc.

Law Offices of Donald L. Frum, Jun Sato, Esq., Paul Zilberfein, Esq., of counsel, Elmsford, NY, for Defendant March Associates, Orangeburg Holding, LLC and Lowe's Home Centers, Inc.

Keane & Beane, P.C., James C. Borkowski, Esq., of counsel, White Plains, NY, for Third-Party Defendant/Second Third-Party Defendant CMC Concrete Masonry.

OPINION AND ORDER

CONNER, Senior District Judge.

Plaintiff Emil Pollack brings this action against defendants Safway Steel Products, Inc., ("Safway"), March Associates ("March"), Orangeburg Holding, LLC ("Orangeburg") and Lowe's Home Centers, Inc. ("Lowe's") (collectively, the "defendants") for violations of New York State Labor Law §§ 240(1), 241(6) and 200, common law negligence and strict products liability.¹ In addition, both Lowe's and Safway brought third-party actions against CMC Concrete Masonry ("CMC") for contribution and indemnification. Plaintiff moves for summary judgment pursuant to FED.R.CIVP. 56 against March, Orangeburg and Lowe's on the claims under §§ 240(1) and 241(6). March, Orangeburg and Lowe's move for summary judgment on the claims under the Labor Law and common law negligence. Safway moves for summary judgment on all claims under the Labor Law and common law negligence. March also seeks contractual and common law indemnification against CMC. For the reasons stated herein, plaintiffs motion for summary judgment on the claims under § 240(1) and § 241(6) against March, Lowe's and Orangeburg is denied. The motion of March, Lowe's and Orangeburg for summary judgment is denied. The motion of Safway for summary judgment is granted with respect to the § 200 claim but denied as to the claims under §§ 240(1) and 241(6). March may seek claims for contractual and common law indemnification; however, to the extent it seeks summary judgment on these claims, this motion is denied.

BACKGROUND

The basic underlying facts are uncontroverted. There are, however, additional facts regarding the responsibilities of the parties that are highly disputed. These facts will be addressed where appropriate. This case involves an accident that occurred when plaintiff fell from scaffolding while constructing a Lowe's store located in Orangeburg, New York (the "construction site"). (Pollack Dep. at 8, 10, 32-34.) March was the general contractor on the construction site. (Sette Dep. at 6.) CMC subcontracted to perform certain concrete masonry work such as erecting block walls. (Caravella Dep. at 7.) Apparently, Orangeburg owned the land on which the Lowe's store was being built, while Lowe's either owned or was the prospective tenant and developer of the store under construction. (Def. Safway Rule 56.1 Stmt. ¶4; PI. Rule 56.1 Stmt. ¶4.)

Plaintiff, a union laborer, was working as a mason tender for CMC. (Pollack Dep. at 6-7.) As a mason tender, Pollack would supply masons building the wall with "block and cement and mud." (Id. at 10.) As the wall was being built, scaffolding was erected to allow workers access to greater heights. (Id. at 13.) Safway provided CMC with scaffolding for the construction site. (Caravella Dep. at 8.) Apparently, there was no written agreement between Safway and CMC for the scaffolding per se. (Id. at 8-10.) However, there were several invoices provided by Safway to CMC outlining the rental terms for the scaffolds. (Def. March Mot.Summ. J., Ex. A.)

On September 25, 2002, plaintiff was working on scaffolding approximately fourteen feet high situated alongside a partially erected back wall. (Pollack Dep. at 16-17, 19, 21.) Plaintiff was working where two completed levels of scaffolding were erected: each approximately six feet high, resting on two-foot high "jack stands." (Id. at 19.) A third level was being assembled that had not been completely filled with planks. (Id. at 23.) Each level has planks, approximately twelve inches wide, that the workers stand on, with six planks covering the area between the building and the outer edge of the scaffold. (Id. at 23-24.) In addition, each frame has metal cross braces and is equipped with mid railings (or "safety railing"), which run on the side opposite to the wall being built. (Id. at 24, 25, 29.) There was a one-by-two pine mid rail where plaintiff was working on the date of the accident. (Id. at 25-r26, 28.) The workers would construct a section of the wall and, once completed, move the frame to complete the next section of wall. (Id. at 24.)

During the afternoon of September 25, 2002, plaintiff was on the scaffolding distributing cement from a large mortar tub. (Id, at 31-32.) While facing the building, plaintiff grabbed a shovel of cement to distribute when he lost his balance. He leaned on the safety railing, which gave way, causing him to fall. (Id. at 32, 34.) Although there were others present at the site, there were no eye witnesses to the accident. (Kolasa Dep. at 12; Sette Dep. at 13.)

DISCUSSION

I. Motion for Summary Judgment Standard

Summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R.CIV.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material only if, based on that fact, a reasonable jury could find in favor of the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. To defeat summary judgment, the nonmovant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).

II. New York Labor Law § 240(1)

Section 240(1) of the New York Labor Law, commonly referred to as the scaffold law, provides protection for construction workers who are injured while working in elevated locations. See Wojcik v. 42nd St. Dev. Project, 386 F.Supp.2d 442, 450 (S.D.N.Y.2005). In pertinent part, this statute provides:

All contractors and owners and their agents, ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall 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.

N.Y. LABOR LAW § 240(1). To prevail under this statute, a plaintiff must demonstrate that the statutory violation was the proximate cause of the sustained injury. Id. "The purpose of this section is to provide protection for workers who are subjected to elevation-related risks; the statute achieves this by imposing absolute responsibility for safety practices on owners, general contractors, and their agents, instead of on the workers themselves." Wilson v. City of New York, 89 F.3d 32, 36 (2d Cir.1996). Therefore, this section is to be interpreted liberally. See Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 513, 583 N.E.2d 932, 577 N.Y.S.2d 219 (1991) ("It is settled that section 240(1) is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (citations omitted)). Indeed, "[t]he duty is nondelegable and the liability is strict; so long as the violation of the statute was the proximate cause of the worker's injuries, the owner will be liable even though it exercised no supervision or control over the plaintiffs work." Id.

There is no doubt that § 240 is applicable to March. See Dos Santos v. Terrace Place Realty, Inc., 433 F.Supp.2d 326, 332 (S.D.N.Y.2006) ("Section 240 applies only to `elevated related hazards.'"). As the general contractor, March was obligated under § 240(1) to provide plaintiff with proper protection while working on scaffolding. However, neither party has provided the Court with sufficient evidence to demonstrate that Lowe's and Orangeburg were the owners of the property. Other than the Verified Complaint, which alleges that Lowe's was the owner or prospective tenant of the building and that Orangeburg was the owner of the parcel where the Lowe's was being built, there is no support for the assertion that Lowe's and Orangeburg were owners of the construction site. Indeed, Lowe's and Orangeburg in their answers denied ownership. (Def. Lowe's Ans. ¶¶1, 3; Def. Orangeburg Ans. ¶¶3, 8, 11.) Without such evidence summary judgment would be improper as to Lowe's and Orangeburg.

March asserts that summary judgment should be denied because "[a] triable issue of fact exists ... as to whether the [pjlaintiff removed the...