Royland v. McGovern & Co.
| Decision Date | 04 November 2020 |
| Docket Number | Index No. 152015/2013 |
| Citation | 2020 NY Slip Op 33734 (U) |
| Court | New York Supreme Court |
| Parties | JAN ROYLAND and BARBARA ROYLAND, Plaintiffs v. McGOVERN & COMPANY, LLC, MARSHALL'S MOVING SERVICE, INC., and PERAGALLO PIPE ORGAN COMPANY, Defendants McGOVERN & COMPANY, LLC, Third Party Plaintiff v. MILFORD FLOORING CORP., Third Party Defendant |
DECISION AND ORDER
I. BACKGROUND
Plaintiffs sue to recover damages for personal injuries and lost services sustained March 17, 2010, when plaintiff Jan Royland, employed by third party defendant Milford Flooring Corp., used a ramp placed over stairs to transport his floor sander into St. Francis Xavier Church at 46 West 16th Street, New York County, which was undergoing renovation. Defendant Marshall's Moving Service, Inc., had installed the ramp, which became loose at the top of the stairs as Royland was ascending the ramp, causing him to slide down to the sidewalk. Defendant McGovern & Company, LLC, was the general contractor for the renovation. The nonparty owner of the premises contracted separately with defendant Peragallo Pipe Organ Company to refurbish the church's pipe organ. Peragallo Pipe Organ hired Marshall's Moving Service, which constructed the ramp, to transport the pipe organ parts back into the church.
Marshall's Moving Service moves for summary judgment dismissing the complaint and all cross-claims against Marshall's Moving Service. C.P.L.R. § 3212(b). Peragallo Pipe Organ cross-moves for summary judgment dismissing the complaint and all cross-claims against Peragallo Pipe Organ. Id. Plaintiffs cross-move for summary judgment that Marshall's Moving Service owed a duty of care to Royland, directed and controlled the work that caused his injury, and violated applicable federal Occupational Health and Safety Administration (OSHA) regulations; that res ipsa loquitur applies; and that Marshall's Moving Service is liable for violation of New York Labor Law § 241(6).C.P.L.R. § 3212(b) and (e). Plaintiffs separately cross-move for summary judgment that Peragallo Pipe Organ owed a duty of care to Royland and directed and controlled Marshall's Moving Service's activities, that res ipsa loquitur applies, and that Peragallo Pipe Organ is liable for violations of Labor Law §§ 240(1) and 241(6). C.P.L.R. § 3212(b) and (e).
McGovern & Company separately moves for summary judgment dismissing the complaint and cross-claims against McGovern & Company and for summary judgment on McGovern & Company's indemnification claims against co-defendants and third party defendant. Id. Plaintiffs cross-move for summary judgment on McGovern & Company's liability for violations of Labor Law §§ 200, 240(1), and 241(6) and for negligence, also claiming that res ipsa loquitur applies. C.P.L.R. § 3212(b) and (e).
The parties stipulated that any contracts between the parties in the record of the pending motions and cross-motions for summary judgment were authenticated and admissible for purposes of these motions.
II. PERMISSIBILITY OF THE MOTIONS AND CROSS-MOTIONS
As set forth above, Peragallo Pipe Organ cross-moves against Marshall's Moving Service's motion for summary judgment and seekssummary judgment dismissing the complaint and all cross-claims against Peragallo Pipe Organ. Marshall's Moving Service's motion seeks relief that includes dismissal of Peragallo Pipe Organ's cross-claim for contribution against Marshall's Moving Service.
C.P.L.R. § 2215's provision that a "party may serve upon the moving party a notice of cross-motion demanding relief" refers to relief against the moving party and thus does not allow a cross-motion as a vehicle for relief against a non-moving party. See Puello v. Georges Units, LLC, 146 A.D.3d 561, 561 (1st Dep't 2017); Hennessey-Diaz v. City of New York, 146 A.D.3d 419, 420 (1st Dep't 2017); Asiedu v. Lieberman, 142 A.D.3d 858, 858 (1st Dep't 2016); Genger v. Genger, 120 A.D.3d 1102, 1103 (1st Dep't 2014). Although C.P.L.R. § 2215(b) provides that the "relief need not be responsive to that demanded by the moving party" and thus may relate to distinct claims or defenses, a cross-motion still must demand relief against the moving party.
Peragallo Pipe Organ's cross-motion to Marshall's Moving Service's motion is permissible only to the extent that the cross-motion seeks summary judgment dismissing Marshall's Moving Service's cross-claims against Peragallo Pipe Organ for contribution, implied and contractual indemnification, and breach of a contract to procure insurance, as Marshall's Moving Serviceis the moving party.
Since plaintiffs filed a note of issue August 28, 2019, the deadline for summary judgment motions was December 26, 2019. C.P.L.R. § 3212(a). Both Marshall's Moving Service and McGovern & Company timely served their summary judgment motions October 25, 2019, and October 28, 2019, respectively. C.P.L.R. § 2211; Derouen v. Savoy Park Owner, L.L.C., 109 A.D.3d 706, 706 (1st Dep't 2013); Esdaille v. Whitehall Realty Co., 61 A.D.3d 435, 436 (1st Dep't 2009); Aqeel v. Tony Casale, Inc., 44 A.D.3d 572, 572 (1st Dep't 2007); Gazes v. Bennett, 38 A.D.3d 287, 288 (1st Dep't 2007). Plaintiffs' cross-motions served January 31, 2020, were untimely. C.P.L.R. § 3212(a). The court may consider plaintiffs' cross-motions, however, to the extent that they respond to and address claims "nearly identical" to Marshall's Moving Service's and McGovern & Company's timely motions for summary judgment. Jarama v. 902 Liberty Ave. Hous. Dev. Fund Corp., 161 A.D.3d 691, 692 (1st Dep't 2018); Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449 (1st Dep't 2013).
The motions by Marshall's Moving Service and McGovern & Company seek summary judgment dismissing the complaint againstthese defendants. Plaintiffs' untimely cross-motion, which seeks summary judgment on defendants' liability based on Labor Law § 240(1) and 241(6) and on issues regarding defendants' liability based on Labor Law § 200 and negligence, satisfies this requirement.
III. PLAINTIFFS' LABOR LAW AND NEGLIGENCE CLAIMS
Labor Law § 200 codifies the duty of a general contractor and any agent of the construction site owner or a general contractor to maintain construction site safety. Rizzuto v. L.A. Wegner Contr. Co., 91 N.Y.2d 343, 352 (1998); Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877-78 (1993). If a dangerous condition arising from construction of the ramp caused Royland's injury, McGovern & Company, as the general contractor, would be liable for negligently permitting that condition and violating Labor Law § 200, if McGovern & Company supervised or exercised control over the activity that caused his injury. Rizzuto v. L.A. Wegner Contr. Co., 91 N.Y.2d at 352; Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d at 877; Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 626 (1st Dep't 2015); Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144 (1st Dep't 2012). See Ocampo v. Bovis Lend Lease LMB, Inc., 123 A.D.3d 456, 457 (1stDep't 2014); Francis v. Plaza Constr. Corp., 121 A.D.3d 427, 428 (1st Dep't 2014). If a dangerous condition on the work site caused Royland's injury, liability depends on McGovern & Company's creation or actual or constructive notice of the condition. Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d at 626; Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d at 144.
Royland's injury arose from the methods or means of the work at the construction site, rather than any condition of the premises. Gilligan v. CJS Bldrs., 178 A.D.3d 566, 566 (1st Dep't 2019); Nelson v. E&M 2710 Clarendon LLC, 129 A.D.3d 568, 569 (1st Dep't 2015); Castellon v. Reinsberg, 82 A.D.3d 635, 636 (1st Dep't 2011). Plaintiffs identify hazards or defects related only to the placement of the ramp that caused Royland's injury and not any hazard or defect inherent in the site. Villanueva v. 114 Fifth Ave. Assoc. LLC, 162 A.D.3d 404, 406 (1st Dep't 2018); Singh v. 1221 Ave. Holdings, LLC, 127 A.D.3d 607, 608 (1st Dep't 2015); Castellon v. Reinsberg, 82 A.D.3d at 636. Marshall's Moving Service installed and removed the ramp daily, including on the day Royland was injured, demonstrating that the ramp was not a condition inherent in the site.
While McGovern & Company insists that it did not direct Royland's work, control of the work that caused the injury is thecritical issue. The deposition testimony by Bruce Tarr, the owner of Marshall's Moving Service, that only it assembled and installed the ramp on the day Royland was injured, demonstrates that McGovern & Company did not control the assembly or installation of the ramp. Tarr testified that the only other contractor that ever assisted with the assembly and installation of the ramp was Peragallo Pipe Organ, but it did not do so on the day Royland was injured. Although Timothy Caines, McGovern & Company's project superintendent, maintained supervisory and overall safety responsibilities, they do not establish the requisite control over Marshall's Moving Service's installation of the ramp. Haynes v. Boricua Vil. Hous. Dev. Fund Co., Inc., 170 A.D.3d 511, 511 (1st Dep't 2019); McLean v. Tishman Constr. Corp., 144 A.D.3d 534, 535 (1st Dep't 2016); Howard v. Turner Constr. Co., 134 A.D.3d 523, 525 (1st Dep't 2015). Therefore McGovern & Company is entitled to summary judgment dismissing plaintiffs' Labor Law § 200 and negligence claims against McGovern & Company.
Peragallo Pipe Organ, although neither the owner nor a general contractor, still may be liable as the owner's statutory agent under the Labor Law if Peragallo Pipe Organ maintained the authority to control the activity that caused Royland's injury.Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 434 (2015); Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863-64 (2005); Santos v....
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