Smith v. The City of New York
| Decision Date | 28 November 2018 |
| Docket Number | Index No. 705492/2014,Motion Seq. Nos. 5,6,7 & 8 |
| Citation | 2018 NY Slip Op 34411 (U) |
| Parties | JERI SMITH, Plaintiff, v. THE CITY OF NEW YORK, MALCOLM PIRNIE, INC., WDF INC., and JOHN P. PICONE, INC, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Present: HONORABLE ALLAN B. WEISS Justice.
SHORT FORM ORDER
ALLAN B. WEISS JUDGE.
The following papers numbered EF182 to EF569 read on this (1) motion by Malcolm Pirnie, Inc. ("MP), for summary judgment in its favor pursuant to CPLR 3212; (2) motion by WDF, Inc. ("WDF"), for summary judgment in its favor pursuant to CPLR 3212; (3) motion by the City for summary judgment in its favor pursuant to CPLR 3212; and (4) motion by Picone/McCullagh JV, i/s/h/a John P. Picone Inc. (herein "Picone"), for summary judgment in its favor pursuant to CPLR 3212.
Notices of Motions - Affidavits - Exhibits.. EF182-198, 267-300 306-331, 350-376
Answering Affidavits - Exhibits...................... EF377-504 537-542, 550-559
Upon the foregoing papers it is ordered that the motions are combined herein for disposition, and determined as follows:
Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on February 6, 2014, when she slipped and fell on black ice at the Tallman Island Water Pollution Control Plant ("Tallman" or "Tallman plant"), located at 127-01 Powells Cove Boulevard, College Point, New York. The Tallman plant, a large facility comprised of a network of buildings and roads, collected and treated city wastewater before releasing it back into the environment. The plant is owned and controlled by the City of New York and the Department of Environmental Protection ("DEP"), (collectively, "the City"). At the time of the alleged incident, the Tallman plant was undergoing renovation and construction of its facilities. During the project, the Tallman plant remained open and was operated by the DEP. Plaintiff was a safety inspector for Pro-Safety, a consulting company hired by WDF, one of several prime contractors hired by the City to participate in the renovation of the plant facilities. Plaintiff was charged with the duty to visit the plant and inspect WDF employees and WDF subcontractors as they performed work to ensure that they were following safety rules and protocol.
Plaintiff testified at a 50-h hearing and upon examination before trial, as follows: Shortly before 8 AM, on February 6,2014, plaintiff reported to the Tallman plant to conduct a routine safety inspection. Plaintiff briefly checked in at the Construction Manager's trailer to find out where WDF was working at the plant. Plaintiff learned that one of WDF's subcontractors, VPH Mechanical, was working in the interior tunnel of a building identified as the "East Gallery". This building is located in another part of the Tallman facility. Plaintiff left the trailer and drove her car along a common roadway called "Center Road" to the building. Center Road is an open partially-paved common street that ran through the Tallman plant premises. It had snowed shortly before February 6,2014, and the roadway had been recently plowed by the City. Plaintiff parked her car on Center Road, on the open roadway across from the building. At one point, plaintiff walked to the building, went inside and downstairs to the basement tunnel to conduct her safety check of WDF's subcontractor. After completing her inspection, plaintiff exited the building to go back to her car and briefly said hello to several colleagues from the GM that were standing on the sidewalk conversing near the building. While greeting each other, Peter Banas, one of the engineers, who was walking in the open roadway, slipped on a patch of black ice. Banas did not fall, however. After the group jokingly warned each other of the spot, plaintiff walked onto the open roadway and crossed Center Road to go back to her car. As plaintiff crossed the open thoroughfare, she slipped and fell on the same patch of black ice in the open roadway.
Shanon Chen was deposed on behalf of the City, and testified as follows: He was employed by the Bureau of Environmental Design and Construction. He was account manager involved in overseeing construction activity of the sewer treatment plant at the Tallman plant. His oversight of construction activities on a daily basis involved reading reports, approving payments, reviewing budgets, reviewing scheduled and sharing meetings. Construction activity pertained to the sewer treatment plant at the Tallman plant. Four prime contractors were present on the project along with a construction manager. Contractors were responsible for their individual means and methods of construction. The employees of the individual contractors had their work directed by the contractor's project manager, their super and foreman. Chen indicated that site safety representatives for the individual primes were responsible to make sure that the prime contractor's employees were working in a safe manner and, if they encountered a hazardous condition such as snow and ice, they would bring it to the attention of the resident engineer (MP).
Richard Pascucci appeared for examination before trial on behalf of Malcolm Pirnie, and testified as follows: Pascucci was a civil engineer who was employed by Arcadis (which had purchased MP). At the Tallman facility, Pascucci was a resident engineer. At Tallman, there were four types of construction: general construction, electrical, plumbing and HVAC. On February 6,2014, Pascucci's duties included monitoring the construction for compliance with plans and specifications. Pascucci had received no reports of slippery spots on Center Road prior to February 6,2014. The general contractor was Picone; the electrical contractor was Haldor, and the plumber and HVAC was WDF. On the date of the subject accident, the HVAC contractor was working at the RAS blower building, sludge storage and mixed flow pump station. Pascucci further testified that Picone was responsible for clearing snow and ice only from areas in which construction was underway.
Iris Martin further testified on behalf of MP, as follows: She was the environmental health and safety officer for Arcadis at the Tallman plant. As such, she was responsible for site environmental health and safety and would perform inspections of set-ups and locations of work. She would also perform various inspections throughout the day. Martin first became aware of plaintiff s accident during a phone call between 7:00 a.m. and 8:00 a.m. She walked over to the site and did not observe any snow or ice on Center Road. In fact, Martin testified, she walked through the same area where plaintiff fell and did not slip or observe any ice on the roadway. However, after the accident, she did inform the resident engineer to inform Picone to spread some rock salt. Martin indicated that the week of the accident was a "crazy week" in terms of the weather, with various freezes and thaws. Lastly, Martin testified that, prior to the accident, she had not received any complaints about the failure to properly remove snow and ice.
Peter Banas also testified on behalf of MP, upon examination before trial, as follows: He was employed by Arcadis and was working at Tallman as an environmental health and safety officer. On the date of the accident, he was provided with a printed list by Martin, of the contractors that required hot work permits. He arrived at Center Road before the accident and did not observe any snow or ice on the roadway. He had a brief conversation with plaintiff and a colleague, Al Gonzalez. He spoke with then for a couple of minutes. Prior to the conversation, however, he had stepped ten feet off a curb on Center Road and slipped in the road. Plaintiff and Gonzalez both acknowledged the slip and told him to look out. Banas did not fall. He looked at the ground and noticed that there was "black ice blended in really well with the asphalt." Less than a minute after speaking with plaintiff and Gonzalez, he heard Gonzalez yell that plaintiff had fallen in the same spot where Banas had slipped. Banas further testified that when he slipped, he observed an area of four square feet of black ice and that there was no snow or visible ice anywhere in the area. Lastly, Banas testified that he made no complaints regarding snow or ice at the Tallman plant.
Liam McLaughlan testified on behalf of WDF, as follows: He is the vice-president of estimating at WDF, which does heating, plumbing and general construction work. Pro-Safety provided safety personnel for WDF. Although McLaughlan was not the project manager at the time of the accident, he acknowledged that cleaning of their work area was the responsibility of WDF pursuant to the contract with the City. WDF did not deal directly with the City, but instead they dealt with the construction manager (MP). WDF's contractor, VPH was working in the RAS building on the date of the subject accident. In addition, subcontractor Tristan of WDF, was working in the mixed flow building. WDF subcontractors VPH Tristan and Pro-Safety were on-site on February 6, 2014. McLaughlan further testified that anytime WDF was performing work on-site, they were required to have a site-safety representative.
Joe Schested testified on behalf of Picone, upon examination before trial, as follows: In February, 2014, he was employed as a project manager for Picone. He was at the Tallman plant on a daily basis, and was present on-site on February 6 2014. His overall duties and responsibilities included managing the job, scheduling costs, recording general management of the contract. As of February 6, 2014, areas of work being performed by Picone were...
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