Robles v. 635 Owner, LLC
| Citation | 2020 NY Slip Op 30479 (U) |
| Decision Date | 13 February 2020 |
| Docket Number | Index No. 162049/2015 |
| Parties | ANGEL ROBLES, Plaintiff v. 635 OWNER, LLC, and W5 GROUP LLC, Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
I. BACKGROUND
Plaintiff sues defendant to recover damages for personal injury sustained May 16, 2013, when he fell from a ladder while inspecting the mezzanine as part of his work on premises owned by defendant 635 Owner, LLC, at 635 6th Avenue, New York County, on a construction project for which defendant W5 Group LLC was the general contractor. Plaintiff moves for summary judgment on his claims under New York Labor Law §§ 240(1) and 241(6). C.P.L.R. § 3212(b) and (e). Plaintiff's stipulation dated March 27, 2019, discontinuing his Labor Law § 200 and negligence claims against 635 Owner resolves 635 Owner's cross-motion for summary judgment dismissing those claims. W5 Group cross-moves for summary judgment dismissing plaintiff's Labor Law § 241(6) claim against W5 Group. C.P.L.R. § 3212(b) and (e). 635 Owner separately moves for summary judgment on its contractual indemnification cross-claim against W5 Group. Id. W5 Group cross-moves for summary judgment dismissing 635 Owner's cross-claims for implied indemnification, contribution, and breach of a contract to procure insurance. Id. W5 Group separately moves to amend its answer, C.P.L.R. § 3025(b), to interpose the defense that New York Workers' Compensation Law §§ 11 and 29(6) bars plaintiff's action, and for summary judgment, C.P.L.R. § 3212(b), dismissing the complaint against W5 Group on that basis. At oral argument, the parties stipulated to treat all the cross-motions as standalone motions. For the reasons explained below, the court grants 635 Owner's motion and grants plaintiff's and W5 Group's motions in part.
II. W5 GROUP'S DEFENSE BASED ON WORKERS' COMPENSATION LAW §§ 11 AND 29
W5 Group opposes plaintiff's motion for summary judgment based on the admittedly unpleaded defense that Workers' Compensation Law §§ 11 and 29(6) bar plaintiff's action, but also moves to amend W5 Group's answer to plead that defense and for summary judgment based on the defense.
W5 Group contends that Workers' Compensation Law §§ 11 and 29(6) bar plaintiff's claims against W5 Group because plaintiff was its special employee. W5 Group may oppose plaintiff's motion for summary judgment based on an unpleaded defense supported by evidence of the defense. Deutsche Bank Natl. Trust Co. v. Desilva, 175 A.D.3d 1221, 1222 (1st Dep't 2019); JPMorgan Chase Bank, N.A. v. Salmon, 154 A.D.3d 603, 603 (1st Dep't 2017); Rivera v. New York City Tr. Auth., 11 A.D.3d 333, 333 (1st Dep't 2004). James Costello testified at his deposition that he was the project manager of Waldorf Demolition, which was the name under which W5 Group conducted business. His and plaintiff's deposition testimony that Costello supervised plaintiff indicates the control essential to establish a special employment relationship. Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 359 (2007); Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558 (1991); Grilikhes v. International Tile & Stone Show Expos, 90 A.D.3d 480, 482 (1st Dep't 2011); Bautista v. David Frankel Realty, Inc., 54 A.D.3d 549, 550 (1st Dep't 2008).
On the other hand, the testimony by Costello that he was managing multiple projects simultaneously, limiting his presence at plaintiff's job site, and that plaintiff usually ran the jobhimself, plus plaintiff's testimony that no one instructed him to inspect the mezzanine, the task he was engaged in when injured, raise factual issues regarding that control. Warnick v. 1211 S. Blvd. LLC, 93 A.D.3d 402, 403 (1st Dep't 2012); Bautista v. David Frenkel Realty, Inc., 54 A.D.3d at 553; Bellamy v. Columbia Univ., 50 A.D.3d 160, 162 (1st Dep't 2008). See Grilikhes v. International Tile & Stone Show Expos, 90 A.D.3d at 482-83. After all, W5 Group was the general contractor in charge of all the work at the site, hired other employers as subcontractors, and thus exercised overall supervision of every worker on the site, whether or not the workers were W5 Group's employees. In fact, in opposing plaintiff's motion and supporting W5 Group's motion for partial summary judgment on plaintiff's Labor Law claims, W5 Group expressly disavows its supervision and control over plaintiff's work.
The testimony by plaintiff that he had never heard of W5 Group and was employed by either Waldorf Demolition or nonparty Calvin Maintenance is inconclusive regarding his employer's identity. Although Costello testified that W5 Group conducted business under the name Waldorf Demolition and owned or was otherwise related to Calvin Maintenance, neither this testimony nor any other evidence presented by W5 Group establishes thatCalvin Maintenance was the same entity as W5 Group and Waldorf Demolition. Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d at 360; Soodin v. Fragakis, 91 A.D.3d 535, 536 (1st Dep't 2012); Demaj v. Pelham Realty, LLC, 82 A.D.3d 531, 532 (1st Dep't 2011). Costello admitted that he was unsure about the relationship between W5 Group and Calvin Maintenance, testifying inconsistently that the former owned or was a sister corporation of the latter. Even if W5 Group owned Calvin Maintenance, or Calvin Maintenance was a subsidiary of W5 Group, or the two entities shared common owners, those facts do not transform an employee of one into the employee of the other or establish the singularity of entity required to apply the Workers' Compensation Law bar to an employee's claim. Kolenovic v. 56 th Realty, LLC, 139 A.D.3d 588, 589 (1st Dep't 2016); Hughes v. Solovieff Realty Co., L.L.C., 19 A.D.3d 142, 143 (1st Dep't 2005). Costello further testified inconsistently that Calvin Maintenance was merely a paymaster for members of a laborers' union who performed interior demolition, such as plaintiff performed, but also that Calvin Maintenance was their employer and that W5 Group employed only management personnel, not union laborers.
While the Workers' Compensation insurance policy that covered plaintiff would be dispositive of the employer entitledto avail itself of Workers' Compensation Law §§ 11 and 29(6) to bar his claims, Gherghinoiu v. ATCO Props. & Mgt., Inc., 32 A.D.3d 314, 315 (1st Dep't 2006), W5 Group presents no such policy. Thus W5 Group falls far short of demonstrating it was a special employer that controlled plaintiff's work as required to invoke the Workers' Compensation Law bar. Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 558; Bellamy v. Columbia Univ., 50 A.D.3d at 162.
Leave to amend pleadings is to be freely granted unless it would surprise or otherwise prejudice the opposing party. C.P.L.R. § 3025(b); Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580 (2015); Kimso Apts., LLC v. Ghandi, 24 N.Y.3d 403, 411 (2014); Global Liberty Ins. Co. v. Tyrell, 172 A.D.3d 499, 500 (1st Dep't 2019); Y.A. v. Conair Corp., 154 A.D.3d 611, 612 (1st Dep't 2017). As set forth above, W5 Group fails to demonstrate its control over plaintiff or that W5 Group, Waldorf Demolition, and Calvin Maintenance were identical entities to establish any merit to its proposed affirmative defense. Kolenovic v. 56th Realty, LLC, 139 A.D.3d at 589. See Ramirez v. Elias-Tejada, 168 A.D.3d 401, 404 (1st Dep't 2019).
The evidence W5 Group presents to support its defense,moreover, is based on its own witnesses' knowledge, yet W5 Group fails to explain why, when it originally answered, it did not know the very facts on which, three years later, it bases its proposed defense. Nevertheless, even if W5 Group's unexplained delay in seeking to interpose the Workers' Compensation Law bar until over three years after commencing the action is not reason alone to deny W5 Group's motion to amend its answer, see Miraglia v. H & L Holding Corp., 67 A.D.3d 513, 514 (1st Dep't 2009); Bellamy v. Columbia Univ., 50 A.D.3d at 166, the lack of merit to that defense compels that result. Davis v. South Nassau Communities Hosp., 26 N.Y.3d at 580; Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170 (1989); Reyes v. BSP Realty Corp., 171 A.D.3d 504, 504 (1st Dep't 2019); Y.A. v. Conair Corp., 154 A.D.3d at 612.
III. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff seeks summary judgment on his Labor Law § 240(1) claim based on his use of a ladder that failed to prevent his fall. W5 Group contends that the evidence does not establish the ladder's failure and instead shows that plaintiff's misuse of the ladder was the sole proximate cause of his injury. 635 Owner does not oppose plaintiff's motion for summary judgment on thisclaim.
Defendants' failure to provide adequate safety devices to protect against elevation related hazards in construction, as required by Labor Law § 240(1), imposes absolute liability on the owner and general contractor of the construction site, if that failure proximately caused plaintiff's injury. Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 338 (2008); Albanese v. City of New York, 5 N.Y.3d 217, 219, (2005); Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 50-51 (2004); Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 289 (2003). Plaintiff is not required to show a defect in the ladder to establish a violation of Labor Law § 240(1). Caminiti v. Extell W. 57th St. LLC, 166 A.D.3d 440, 441 (1st Dep't 2018); Hill v. City of New York, 140 A.D.3d 568, 570 (1st Dep't 2016); Fanning v. Rockefeller Univ., 106 A.D.3d 484, 485 (1st Dep't 2013); Estrella v. GIT Indus., Inc., 105 A.D.3d 555, 555 (1st Dep't 2013).
Plaintiff testified that he used the ladder on the first floor of the building undergoing demolition, to inspect the mezzanine level. He did not know who erected the ladder. As he attempted to descend the...
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