Volgassov v. Silverstein Props.
| Citation | 2022 NY Slip Op 30078 (U) |
| Decision Date | 12 January 2022 |
| Docket Number | Index 12355/14 |
| Court | United States State Supreme Court (New York) |
| Parties | Ivan Volgassov, Plaintiff, v. Silverstein Properties, Inc., 4 World Trade Center LLC, Tishman Construction Corporation, Turner Construction Company, Tishman/Turner A Joint Venture, Port Authority of New York and New Jersey, Clarkwestern Dietrich Building Systems LLC, Park Avenue Building & Roofing Supplies, Inc., Park Avenue Building & Roofing Supplies, LLC, and Navarro Trucking LLC, Defendants, |
Karen B. Rothenberg Judge
The following e-filed papers read herein: NYSEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 4-5, 45, 48, 54-55, 84-85 91, 92-93, 118-119, 155, 167, 207, 209
Opposing Affidavits (Affirmations) 51, 167, 169, 170, 172, 174, 175 176, 177, 215, 221, 293, 298, 301, 303, Affidavits/ Affirmations in Reply 178, 179, 180, 187, 189, 190, 191, 196 197, 292, 294, 296, 300, Other Papers Plaintiff's Exhibit 33 (DVD Video)[1] Upon the foregoing papers, defendants Silverstein Properties, Inc. (Silverstein), 4 World Trade Center LLC (4WTC), Turner Construction Company (Turner) and Port Authority of New York and New Jersey (Port Authority) (collectively referred to as the World Trade Center Defendants) move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and granting them summary judgment in their favor on their common-law indemnification claims .
Defendants Tishman Construction Corporation (Tishman) and Tishman/Turner A Joint Venture (Tishman/Turner) moves for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and all cross claims asserted against them (mot. seq. 10).
Defendant Navarro Trucking LLC (Navarro) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint as against it (mot. seq. 11).
Defendant Clarkwestern Dietrich Building Services LLC (Clarkwestern) moves for an order: (1) pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all cross claims as against it; (2) pursuant to CPLR 3025 (b), granting it leave to amend its answer to assert crossclaims for contractual indemnification and for breach of contract for failure to obtain insurance as against Navarro; and (3) pursuant to CPLR 3212, granting it summary judgment in its favor on its cross claims for contractual indemnification and breach of contract for failure to obtain insurance (mot. seq. 12).
Plaintiff cross-moves for an order, pursuant to CPLR 3212, granting him partial summary judgment in his favor as against defendants Port Authority, Silverstein, 4WTC, Tishman, and Turner with respect to his Labor Law § 240 (1) cause of action, with respect to his Labor Law 241 (6) cause of action premised on violations of 12 NYCRR 23-1.7 (f) and 12 NYCRR 23-9.8 (h), and with respect to his common-law negligence and Labor Law § 200 causes of action (mot. seq. 13).
The World Trade Center Defendants' motion (mot. seq. 9) is granted only to the extent that plaintiff's Labor Law § 241 (6) cause of action is dismissed as against them and the Labor Law § 200 cause of action is dismissed to the extent that is premised on a dangerous property condition theory of liability. Their motion is otherwise denied.
Tishman and Tishman/Turner's motion (mot. seq. 10) is granted and the complaint and all cross claims against them are dismissed, the action is severed accordingly, and the clerk is directed to enter judgment accordingly.
Navarro's motion (mot. seq. 11) is granted to the extent that plaintiff's causes of action premised on Labor Law §§ 200, 240 (1), and 241 (6) are dismissed as against it. Navarro's motion is otherwise denied.
Clarkwestern's motion (mot. seq. 12) is granted to the extent that plaintiff's causes of action premised on Labor Law §§ 200, 240 (1), and 241 (6) are dismissed as against it and to the extent that it is granted leave to amend its answer to assert a cross claim for contractual indemnification as against Navarro.[2] Clarkwestern's motion is otherwise denied.
Plaintiff Ivan Volgassov's motion (mot. seq. 13) is denied.
In view of the dismissal of the action as against Tishman and Tishman/Turner, and in view of the stipulation, dated July 7, 2020, discontinuing the action as against defendants Park Avenue Building & Roofing Supplies, Inc., and Park Avenue Building & Roofing Supplies, LLC, with prejudice, the caption is amended to read as follows:
In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff Ivan Volgassov alleges that he was injured on March 26, 2014 when, while standing on a flatbed trailer helping unload drywall framing and track, he cut a strap[3] securing drywall track to a skid, and pieces of the drywall track fell off the skid onto plaintiff, pushing him off the side of the truck onto the ground. At the time of the accident, the flatbed trailer was parked at a loading dock at 4WTC's building, which was then under construction. Port Authority was the owner of the premises, which it leased, pursuant to a 99-year lease, to 4WTC. Silverstein was an affiliate of 4WTC.[4] 4WTC hired Tishman as the general contractor for building the core and shell the building, which work also encompassed the construction of the temporary loading dock at issue. 4WTC also hired Turner to act as the general contractor for the interior buildout of several floors of the building and Turner, in turn, subcontracted with plaintiff's employer, non-party Jacobson & Company, Inc. (Jacobson), to install drywall and ceilings.[5] The drywall framing material, which was ordered by Jacobson, [6] was manufactured by Clarkwestern and was delivered to the construction site by Nazarro, a trucking company with which Clarkwestern had a long-term contract for delivering its products.
On the morning of the accident, plaintiff, who was employed by Jacobson as a carpenter, was installing tracks in the ceiling of one of the floors on which Jacobson was working when he was instructed to assist with the unloading of drywall studs and drywall track from a flatbed trailer. When plaintiff reached the Liberty Street loading dock, the flatbed trailer was already parked at the loading dock with the rear of the trailer abutting the loading dock platform. At that time, the truck driver had already taken off the straps securing the skids of material to the trailer, but the straps securing the studs or track to the skids were still in place. The loading dock had no platform along the side of the trailer, the bed of which, according to plaintiff, was approximately five feet above the ground.[7]Since Turner had informed Jacobson that it could not use forklifts in the street to unload material from the delivery trucks, [8] plaintiff and his coworkers unloaded the trailer by cutting the straps securing the studs or track to the skids, hand carrying the studs and track off the trailer to A-frame carts sitting on the loading dock platform, and then rolling the carts to the material lift to the floors on which Jacobson was working.
After plaintiff and his coworkers had unloaded several skids in this manner, plaintiff then went to cut the straps securing a skid of drywall track that was located near the front (cab end) of the trailer. In order to reach the straps, plaintiff walked along the edge of the trailer, facing the skid, and his back to the sidewalk side of the trailer. Plaintiff cut the first two straps without incident, but when he cut the third strap, some bundles of the track pieces came off the skid and pushed plaintiff off the side of the trailer as the track pieces[9] fell to the ground. Although plaintiff landed on his feet on the sidewalk next to the truck, his back struck a parking bollard as he fell. The track pieces that struck plaintiff were located near the top of a skid, which was at the same level as plaintiff's chest, a height that plaintiff, in his deposition testimony, estimated to be five feet above the trailer bed.[10]
At his deposition, plaintiff testified that after the accident he observed that the dunnage - wooden pieces placed around the drywall track by Clarkwestern to help hold the track in place on the skid - appeared to be missing from the skid at issue. At his deposition, Thomas DePrima, a Jacobson shop steward who was standing on the truck at the time of the accident, asserted that the dunnage on the skid appeared to have been improperly placed. Both plaintiff and DePrima stated that the issue with the dunnage could have contributed to the drywall track falling when the straps were released. Shane Ouellette, a Jacobson supervisor, testified that, after the accident, he noticed that the pieces of drywall track that fell off of the truck appeared to be bent, suggesting to him that the straps used by the truck driver to hold the skids of track onto the trailer were too tight, which he believed would have caused the track bundles to come loose when plaintiff cut the straps. Ouellette believed this possible cause of the accident was supported by a photograph that, according to Ouellette, shows dunnage out of kilter, which he believes likely happened because the skid of drywall track was strapped too tightly onto the truck.
Clarkwestern's witness, Charles Hahn, provided detailed testimony regarding the size and weight...
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