Sicilia v. City of New York, 2009 NY Slip Op 32832(U) (N.Y. Sup. Ct. 12/4/2009)
| Decision Date | 04 December 2009 |
| Docket Number | 103443/2003,Sequence MS012 |
| Citation | 2009 NY Slip Op 32832 |
| Parties | STEPHEN SICILIA, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY and VERTEX ENGINEERING SERVICES, Defendants, CITY OF NEW YORK and NYCTA Third-Party Plaintiffs, v. MAINCO ELEVATOR & ELECTRICAL CORP. Third-Party Defendants VERTEX ENGINEERING SERVICES Second Third-Party Plaintiff, v. MATNCO ELEVATOR & ELECTRICAL CORP. a/k/a MAIN ELEVATOR SERVICES., CO. Second Third-Party Defendant, MAINCO ELEVATOR & ELECTRICAL CORP., a/k/a MAIN ELEVATOR SERVICES, CO. Third Third-Party Plaintiff, v. PRUDE CONSTRUCTION CORP. and JB ELECTRIC CORP. Third Third-Party Defendants |
| Court | New York Supreme Court |
Defendants and third-party plaintiffs City of New York, New York City Transit Authority, and Vertex (collectively, "City defendants") move for summary judgment dismissing plaintiffs claims and third-party defendant Mainco Elevator & Electrical Corp.'s ("Mainco") cross-claims against them, and for summary judgment on City defendants' indemnification claim against Mainco. Plaintiff and Mainco oppose these motions respectively.
Mainco moves for summary judgment dismissing all claims against it, and for summary judgment on its common-law indemnification claims against third third-party defendant JB Electric Corporation ("JB Electric"). Mainco also moves to strike JB Electric's answer for failure to produce a knowledgeable witness for a deposition. Plaintiffs, City defendants, and JB Electric oppose these motions respectively.
Plaintiff Stephen Sicilia ("plaintiff or "Sicilia") moves for summary judgment on liability for its claims against City defendants. City defendants oppose the motion.
For the reasons that follow, City defendants' motion to dismiss is granted on plaintiffs claim under Labor Law §§ 240 and 200, and denied on plaintiffs claim under Labor Law § 241(6). City defendants' motion for summary judgment on its indemnification claims against Mainco is granted. Plaintiffs motion for summary judgment on these claims is denied.
Mainco's motions to dismiss city defendants' claims based on § 241(6) is denied, and its motion to dismiss based on Labor Law §§ 240 and 200 is granted to the extent that they are mooted by this court's dismissal of the underlying claims. Mainco's motion for summary judgment on common-law indemnification against JB Electric and its motion to strike JB Electric's answer are denied.
The case arises from an accident during a renovation project where Vertex, Mainco, JB Electric, and Prude Construction Corp. held different tasks in connection with the rehabilitation of the subway station at 181st Street.
Vertex is a general contractor, hired by New York City Transit Authority to rehabilitate the subway stations (Examination Before Trial of Kevin Heffernan, September 8, 2004, City defendants' Notice of Motion, Ex. L, pp. 10-16) (hereinafter "first Heffernan deposition"). JB Electric was the electrical subcontractor on the project, whose responsibilities included provision of temporary lighting for the station (first Heffernan deposition pp. 20-21). Sicilia was an employee of Mainco, another subcontractor on the project (Plaintiffs Verified Bill of Particulars, Plaintiffs Notice of Cross-Motion, Ex.3) (hereinafter "Bill of Particulars"). Mainco's specific responsibilities for the day of the accident are unclear and disputed, and the parties also dispute whether Sicilia was the only Mainco employee present that day. Another subcontractor, Prude Construction Corporation ("Prude"), employed carpenters at the site (hereinafter "Heffernan Affidavit").1
At the time of the accident, Sicilia was standing on the roof portion of an elevator (Examination Before Trial of Stephen Sicilia, Sept. 7, 2004, Plaintiffs Notice of Cross-Motion Ex. 7, p. 39) (hereinafter "first Sicilia deposition"). On that day, Prude and Vertex carpenters were installing gallery door hardware at each floor on the inside of the elevator shaft (first Heffernan deposition, pp. 22-23). A gallery door is the hollow metal door that, in this case, led to the stairwell (first Heffernan deposition, pp. 22-23). Plaintiff's sole responsibility was to operate the elevator with a device that enabled him to move the elevator up and down, so that the carpenters could install slam locks outside of the elevator (first Sicilia deposition, p. 34).
The top of the elevator was uneven by design (first Sicilia deposition, pp. 53, 55-56). To allow for the lights in the elevator's ceiling, two recessed lighting units protruded five inches above the elevator roof (first Sicilia deposition pp. 53-56). City defendants allege (without citation to the record) that Sicilia was sitting on these protrusions for a long period of time prior to his accident.
Light was provided by a drop light, which was suspended by a hundred-foot extension cord, which was in turn attached to an outlet in the motor room one flight from street level (first Sicilia deposition, p. 49; second Sicilia deposition p. 11). Plaintiff does not know when the drop light was set up or who installed it (first Sicilia deposition, p. 49). He testified that the lighting was set up by "a 100 foot extension cord plugged into an outlet, dropped down from the smoke hole, attached to a six foot extension cord and then another extension cord hooked to that to go in the cab and one hanging with tape and wire holding the drop light." (Examination Before Trial of Stephen Sicilia, November 14, 2005, City defendants' Notice of Motion, Ex. K. p. 18) (hereinafter "second Sicilia deposition"). He further alleges that the cord was just "plugged in," and not secured or taped to the outlet (second Sicilia deposition, p. 18). Plaintiff and Mainco allege that but for this drop light the surroundings were naturally dark, devoid of sunlight or permanent lighting (first Sicilia deposition, pp. 45, 48). In direct contrast, JB Electric insists that it installed temporary lighting in the shaft, consisting of a string of lights that ran from the motor room down the side of the elevator shaft into the shaft way (Examination Before Trial of Louis Viera, JB Electric Affirmation in Partial Opposition, Ex. C, pp. 84-85) (hereinafter "Viera deposition"). According to JB Electric, these lights were placed "every couple of feet" on the string (Viera deposition, pp. 84-85)
Kevin Heffernan, Vertex's Senior Project Manager testified at his examination before trial that either he, Ben Howell of Vertex, or Keith Spira of Prude would be present at the site on a daily basis to take care of safety management (first Heffernan deposition, pp. 23-25). Heffernan was present on the day of the accident, and he had authority to stop work if he observed unsafe conditions (first Heffernan deposition, p. 54). In his daily log, he noted that JB Electric, Mainco, and five Vertex employees were present at the site (Examination Before Trial of Kevin Heffernan, March 1, 2006, City defendants' Notice of Motion Ex. L, p. 16) (hereinafter "second Heffernan deposition"). He identified JB Electric as the electrical contractor, who was responsible for temporary lighting pursuant to a written agreement (second Heffernan deposition, pp. 19-21). All of JB Electric's on-site employees were pulling wire in the motor room above the elevator shaft (first Heffernan deposition, p. 69). He testified that there was nothing securing the drop light's extension cord to prevent it from being pulled out, and no signs were put on or by the outlet to warn that the extension cord should not be pulled out (first Heffernan deposition, p. 68).
Prior to the accident, Sicilia noticed that the lighting was inadequate (first Sicilia deposition, p. 57). On February 1, 2002, three days before his fall, he approached the electricians and asked them for additional lighting (first Sicilia deposition, p. 57). He was told by an electrician that the lighting was for "his men" only (first Sicilia deposition, p. 57). Sicilia does not know if the electrician was employed by JB Electric (first Sicilia deposition, p. 57).
At 9:30 in the morning of February 4, 2002, Sicilia was on top of the elevator, operating it for the benefit of the carpenters, as previously described (Sicilia's first deposition, p. 29). Without warning, the drop light above him went out, leaving Sicilia in the dark (Sicilia's first deposition, pp. 65-67). In response, he took out his own flashlight, and inadvertently dropped it down the shaft while trying to turn it on (Sicilia's first deposition, p. 67). He then tried to reach for the drop light to see if it was unplugged (Sicilia's first deposition, p. 67). In attempting to do so, he fell on his back, landing on the elevator's recessed lighting (Sicilia's first deposition). It is undisputed that he landed on the surface where he had been working, and that his body did not drop below the elevator cab's roof (Sicilia's first deposition, p. 38). Sicilia believes that he lost consciousness for approximately one minute (Sicilia's first deposition, p. 66). Sicilia later learned that the drop light's electrical cord had become unplugged from its socket (Sicilia's first deposition, p. 81).
Sicilia sued the City defendants, alleging that his injuries were due to the faulty lighting system and the elevator's uneven surface. He does not allege defects in the elevator. Sicilia alleges serious and permanent injuries, and seeks lost wages for two years. He was barred under the worker's compensation law from suing his employer Mainco. City defendants sued plaintiffs employer Mainco for indemnification. Mainco in turn sued subcontractors JB Electric and Prude for indemnification. Prude is no longer a party in this action.
In a prior motion sequence, Mainco moved for summary judgment against Vertex, and JB Electric moved to dismiss the claims against...
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