Troup v. Bovis Lend Lease LMB, Inc.

• Decision Date: 24 April 2014
• Citation: 45 Misc.3d 508,2014 N.Y. Slip Op. 24178,990 N.Y.S.2d 770
• Parties: Ray TROUP, Plaintiff, v. BOVIS LEND LEASE LMB, INC., et al., Defendants.
• Court: New York Supreme Court

45 Misc.3d 508
990 N.Y.S.2d 770
2014 N.Y. Slip Op. 24178

Ray TROUP, Plaintiff,
v.
BOVIS LEND LEASE LMB, INC., et al., Defendants.

Supreme Court, Kings County, New York.

April 24, 2014.

[990 N.Y.S.2d 772]

Phillip J. Rizzuto, P.C., Carle Place, for Plaintiff.

Newman, Myers, Kreines, Gross & Harris, Pinnacle Industries II, LLC, New York, for Defendant.

Bovis Lend Lease LMB, Inc., New York, pro se.

MARK I. PARTNOW, J.

Upon the foregoing papers, defendants move, pursuant to CPLR 3212, for an order granting summary judgment dismissing plaintiff's complaint.

BACKGROUND

On November 14, 2007, plaintiff Ray Troup (Troup) was employed as a security guard by non-party Eddington Security at a certain ongoing construction project at 255 E 74th Street in New York, New York. The project was known as “La Casa 74.” Before becoming licensed, Troup's training included an eight hour course and a sixteen hour course.

At the time of his employment and the subject incident, the two entities which dominated the project were defendants Pinnacle Industries II, LLC (Pinnacle), and Bovis Lend Lease LMB, Inc. (Bovis), which was the general contractor and, according to the deposition testimony of Neal Cohen (Cohen), who testified on behalf of defendant-owner Casa 74th Development LLC (Casa), was the designated construction manager. All of the subcontractors were engaged by and reported to Bovis. Cohen testified that Bovis was in charge of safety-related matters at the site, and identified Al Juneau (Juneau), a Bovis employee, as the Superintendent managing the project on behalf of Bovis.

Michael Mariscano, the safety manager for Pinnacle, testified that there were no guidelines or requirements for any of the employees hired to perform work at the job site other than they be union members. Thus, no background checks or investigations as to whether any newly-hired employees had a violent criminal record were conducted.

As set forth in the record, Troup took his assignments from Eddington. He never had any discussions with Casa's employees or principals, never attended meetings

[990 N.Y.S.2d 773]

about the project or project security, and never discussed security with Pinnacle before the subject incident. After working with Eddington for about one month, Troup was assigned the task of creating identification badges for the workers at the site, all of whom were required to wear them.¹ He was not provided with or authorized to employ any sort of weapon. He was provided with a walkie-talkie radio, which was owned by Casa and provided by Bovis. The procedure he followed involved going into a designated shanty, have the worker complete a form, and using a camera with which he was provided, take the worker's photograph. This assignment, together with preventing the entry of unauthorized persons onto the worksite, was plaintiff's primary responsibility.

Bovis had instructed plaintiff that every worker needed to have an identification card. Juneau advised plaintiff that plaintiff's responsibility was to process the cards, and that Troup was to contact Juneau, or a Bovis or Pinnacle foreman via the walkie-talkie radio, if anyone resisted, as the radios were expressly provided for the purpose of conflict resolution. According to the testimony of Stephen Nash–Webber, Bovis's Project Manager, verbal conflicts occurred approximately ten times per month.

According to plaintiff's deposition testimony, on November 14, 2007, he arrived at work and was advised that no radios were available either in his office or in Bovis's office. At some later point in time, three Pinnacle employees arrived at the job site without identification, and plaintiff and these three workers went into the shanty to undertake the identification card process. At some point, one of the individuals, identified as Michael Zerbo (Zerbo), became verbally abusive toward plaintiff, stating, “F—Bovis. They can't stop me from making my money. There's nobody that's going to kick me off this site. I don't even need to take this ID. I don't want to take this ID.”

Plaintiff asked Zerbo to leave, but Zerbo refused. He then closed in on plaintiff and shoved him. Plaintiff testified that at this point, he reached, in vain, for his radio. A physical altercation ensued, resulting in plaintiff's falling to the ground, where plaintiff sustained a fracture of the leg which required surgery. Within two minutes, Juneau came into plaintiff's shanty, arranged for plaintiff's medical treatment and completed an incident report.

Plaintiff commenced the instant lawsuit alleging violation of New York's Labor Law § 200 and common-law negligence. Plaintiff contends that the fact that he lacked a radio on that day was a contributing factor to his injuries.

Defendants' Motion

In first seeking dismissal of plaintiff's Labor Law causes of action, defendants contend that as a security guard, he is not entitled to the protections of the Labor Law. They further assert that because an employer is not responsible under the doctrine of respondeat superior for torts that arise out of the personal motives of the employee, Pinnacle cannot be held liable, and, since neither Case nor Bovis employed Zerbo, the doctrine is not applicable to them.

Defendants further maintain that as there is no evidence that Zerbo had a known propensity for violent or tortious conduct, there can be no liability for negligent hiring or supervision.

[990 N.Y.S.2d 774]

Finally, project owner Casa and construction manager Bovis deny supervising the manner or means by which plaintiff or his assailant performed their work and did not direct how such work should be performed, and, contending that they lacked any authority to do so, seek summary judgment dismissing the common law negligence cause of action.

Plaintiff's Opposition

Initially, plaintiff seeks denial of defendants' motion based upon the fact that it is supported solely by an attorney's affirmation and unsigned deposition transcripts. Further, he contends that defendants have failed to address all of the allegations contained in his verified bill of particulars, including that he was affirmatively placed in a hostile work environment due to the widespread resistance, on the part of the workforce, to the ID badge process to which plaintiff was assigned, that surveillance monitors should have been placed in the shanty, and that he was deprived of the use of a radio, the only means by which he could communicate and seek assistance.

Further, plaintiff contends that Pinnacle is liable for the tortious conduct of Zerbo, whom it employed, arguing that (1) because the subject matter of the dispute was Zerbo's unhappiness with the ID badge process, it was work-related, and not personally motivated; and (2) based upon Nash–Webber's testimony that similar disputes had occurred in the past, the event was not unforeseeable. He goes on to contend that because the hiring process did not include a screening process, defendants are responsible under a theory of negligent hiring of Zerbo, and, noting that Bovis owned the radios with which plaintiff was not provided that day, contends that defendants breached their common law duty of providing plaintiff with a safe place to work. With regard to the latter contention, plaintiff rejects Bovis' claim of non-involvement in the ID Badge process, citing his own testimony that the assignment to create the identification badges came from Bovis; asserting that Bovis, the general contractor, issued plaintiff his instructions through Juneau, its employee; and, referring to Cohen's testimony, maintaining that Bovis had jurisdiction over any resistance by employees stemming from the ID badge process.

As to the challenged applicability of Labor Law § 200, plaintiff argues that irrespective of whether plaintiff was directly involved in construction, his cause of action thereunder is premised on the statutory language imposing liability where there is a dangerous condition and the defendant has control over the worksite and notice of the condition.

Finally, asserting that defendants fail to provide an affidavit from any Pinnacle employee and omitted the accident report prepared by Juneau following the incident, plaintiff contends that none of his allegations are disputed, and invites the court to search the record and grant summary judgment in his favor on the issue of liability. In addition to providing his own affidavit, where he alleges that he “instinctively” reached for his radio after Zerbo became verbally abusive and began shoving him before grabbing plaintiff and pushing him hard, whereupon he fell to the ground, plaintiff provides an affidavit of Henry Murphy, C.P.P., who states therein that he is a qualified Safety Expert in this jurisdiction.

Affidavit of Henry Murphy

Murphy states that in order to perform his investigation, he reviewed the deposition transcripts of the parties and non-parties to this litigation, as well as photographs and other investigation materials forwarded to him by plaintiff's counsel. He alleges that prior to November 14,

[990 N.Y.S.2d 775]

2007, plaintiff complained to his supervisor that the ID requirement was creating a hostile environment at the workplace and that on the date of the incident, the radio which he used for communication had been removed. He indicates that at the time Zerbo began the confrontation, no other security guards were present, nor was plaintiff able to radio for help. He opines, based upon a reasonable degree of safety standards, that this incident occurred due to multiple departures therefrom. Specifically, he opines that Bovis, as Juneau's employer, knew about the specific danger plaintiff was in, having assigned him to the task of having agitated workers issued identification cards against the wishes of the employees. He further asserts that a greater security presence should have been instituted during this time to protect the security guards [sic] involved in this task, and that Troup had complained several times...