Byrnes v RP1185 LLC 2024 NY Slip Op 30029(U) January 5, 2024 Supreme Court, New York County
Docket Number: Index No. 160214/2019 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.160214/2019 Motion No. 004 005 006 Page 1 of 9

The following e

- filed documents, l isted by NYSCEF document number (Motion 004) 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 149, 150, 151

were read on this motion to/for JUDGMENT

- SUMMARY

.

The following e

- filed documents, l isted by NYSCEF document number (Motion 005) 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 211, 213, 223, 224, 225, 226, 231, 232, 233

were read on this motion to/for JUDGMENT

- SUMMARY

.



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. LYLE E. FRANK PART 11M

Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 160214/2019

MOTION DATE 06/21/2023,

10/06/2023, 10/10/2023

MOTION SEQ. NO. 004 005 006

DECISION + ORDER ON MOTION THOMAS BYRNES, SUZETTE BYRNES,

Plaintiff,

- v

- RP1185 LLC,LEND LEASE (US) CONSTRUCTION LMB INC.,GLOBAL PRECAST INC.,

Defendant.

------------------------------------------------------------------- -- ------------ X

RP1185 LLC, LEND LEASE (US) CONSTRUCTION LMB INC.

Plaintiff,

- against

GLOBAL PRECAST INC.

Defendant.

-------------------------------------------------------------------------------- X Third

- Party Index No. 595445/2020

GLOBAL PRECAST INC., GLOBAL PRECAST INC.

Plaintiff,

- against

JEMCO ERECTORS INC.

Defendant.

-------------------------------------------------------------------------------- X Second Third

- Party Index No. 595818/2020

INDEX NO. 160214/2019

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The following e

- filed documents, l isted by NYSCEF document number (Motion 006) 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 212, 214, 215, 216, 217, 218, 219, 220, 221, 222, 227, 228, 229, 230, 234, 235, 236

were read on this motion to/for JUDGMENT

- SUMMARY

.
This action arises out of injuries sustained on a construction site as a result of alleged

violations of the New York State Labor Law. The parties each move, by motion and cross

motion, for summary judgment. The Court will address each motion in turn.

Background

On September 28, 2019, the date of the incident, p laintiff, Thomas Byrnes, was employed

by second

- third party defendant Jemco Erectors Inc. ( “ Jemco ” )

. Construction was being

performed at 1185 Broadway New York, New York. The premises is owned by defendant/third

party plaintiff RP1185 LLC (“RP1185”). RP1 185 hired defendant/third

- party plaintiff Lendlease

(US) C onstruction LMB I nc

. (“Lendlease”) as the general contractor of the project . Lendlease

hired the defendant/ third

- party d efendant /second third

- party plaintiff , Global Precast Inc.

(“Global”) to prov ide, manufacture, and install the precast panels on the project

. Global then

subcontracted with Jemco to perform installation of the precast panels.

Immediately prior to the subject accident, plaintiff was in an elevated scissor lift

.

Plaintiff , and othe r employees of Jemco were installing the precast panels. Plaintiff was working

from a scissor lift making bottom lateral connections on the panels by installing threaded rods

through embeds in the panels to embeds located in the concrete beam that the pan els were being

attached to. The subject panel was released by the crane and p laintiff was unable to make the

connections as necessary and was instructed to place wooden shims as a temporary fix. T he

panel began to fall off the wall and struck the scissor lift . Plaintiff jumped off the scissor lift to

avoid being crushed by the 14,600

- pound panel. INDEX NO. 160214/2019

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### [* 2]160214/2019 Motion No. 004 005 006 Page 3 of 9 Summary Judgment Standard

It is a well

- established principle that the "function of summary judgment is issue finding,

not issue determination." Assaf v Ropog Cab Corp. , 153 AD2d 520, 544 [1st Dept 1989]. As

such, the proponent of a motion for summary judgment must tender sufficient evidence to show

the absence of any material issue of fact and the right to entitlement to judgment as a matter of

law. Alvarez v Prospect Hospital , 68 NY2d 320, 501 [1986]; Winegrad v New York University

Medical Center , 64 NY 2d 851 [1985]. Courts have also recognized that summary judgment is a

drastic remedy that deprives a litigant of his or her day in court.  Therefore, the party opposing a

motion for summary judgment is entitled to all favorable inferences that can be drawn from the

evidence submitted.

Motion Sequence 00 4

Plaintiff moves for partial summary judgment on his claims pursuant to Labor Law § 240

(1) against all direct defendants and his claims pursuant to Labor Law § 200 and common law

negligence as against Global only . Global opposes the instant motion in its entirety

. RP1185 and

Lendlease oppose the portion of the motion based upon a violation of Labor Law § 240 (1). For

the reasons set forth below, plaintiff’s motion is granted in part

.
Labor Law § 240 (1)

Labor Law § 240 (1) provides in pertinent part that

"[a]ll contractors and owners and their agents, [...] who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." INDEX NO. 160214/2019

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It is well established law that an accident alone does not establish a Labor Law § 240 (1)

violation or causation. ( Blake v Neighborhood Hous. Servs. of N.Y. City, Inc. , 1 NY3d 280 [2003];

Rudnik v Brogor Realty Corp ., 45 AD3d 828 [2d Dept 2007]; Forschner v Jucca Co. , 63 AD3d

996 [2d Dept 2009] )

. Rather, the protections afforded by this section are invoked only where

plaintiff demonstrates that he was engaged in an elevation

- related activity and the failure to provide

him with a safe ty device was the proximate cause of his injuries. See id.

To prevail on summary judgment in a falling object case under the scaffold law, “the

injured worker must demonstrate the existence of a hazard contemplated under that statute and the

failure to us e, or the inadequacy of, a safety device of the kind enumerated therein” Fabrizi v 1095

Ave. of Americas, L.L.C. , 22 NY3d 658, 662 [2014].

In support of its motion, plaintiff contends that that the record establishes that the panel

fell because of the wa y it was fabricated. Plaintiff, citing the accident report, contends that

Global was issued citations to Global following the subject accident and that numerous panels

had to be reinspected and removed based on the inadequacy of the panels manufactured by

Global.

Here, there is no dispute that the collapse of the panel is a cause of the subject accident.

The fact that the panel fell, struck the scissor left and caused plaintiff to jump to avoid being

struck by the panel is not in dispute. Whether the c ause of the collapse was a manufacturing

defect or an error in installation, the Court does not opine, nor is it relevant for the purposes of

this determination of the applicability of Labor Law § 240 (1). Plaintiff does not adequately

establish that there was a failure of a safety device or lack of a safety device that caused

plaintiff’s accident . The cases relied on by plaintiff are inapposite

, as will be discussed below

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In Runner

, distinguishable fro m the instant matter, a worker was injured when the “make

shift” pulley system he was operating rapidly descended causing injury to the worker’s hand

( Runner v NY Stock Exch., Inc.

, 13 NY3d 599, 601 [2009]). The Court of Appeals found that the

pulley sys tem was the safety device and that there was a “ causal connection between the object's

inadequately regulated descent and plaintiff's injury ” id at 605

.

In Jordan

, the p laintiff was injured when a rail struck him ( Jordan v City of NY

, 126

AD3d 619, 620 [1st Dept 2015])

. T here the First Department based its decision on the fact that

the height from which the rail fell was not de minimis

, the issue of the height of the panel is not

at issue here, thus this case is also distinguishable from the instant matter.

In Gallegos , plaintiff was injured when a slab fell while being hoisted ( Gallegos v Bridge

Lane Vestry, LLC , 188 AD3d 566 [ 1st Dept 2019 ]). Here, the panel was not in the process of

being hoisted and had been released from the crane at le ast 5 minutes before the panel began to

move and fall.

Plaintiff cites to Howe v Syracuse University , 306 AD2d 891 [ 4th Dept 2003 ], where a

wall collapse d on scaffold

, during a demolition project, and plaintiff jumped off the scaffold

resulting in injuries. There the Fourth Department found that plaintiff established he was not

furnished with an appropriate safety device. Howe is distinguishable from the case law in this

Department as well as the facts of the instant matter. Unlike t he plaintiff in Howe , plaintiff here

has not established th e inadequacy of a safety device or lack thereof. As discussed above, the

panel did not fall while being hoisted

.

Plaintiff relies on Ortega

, that stands for the general proposition that “ plaintiff merely has

to demonstrate that he or she was injured when an elevation

- related safety device failed to

perform its function to support and secure him from injury” ( Ortega v City of New York , 95 INDEX NO. 160214/2019

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AD3d 125 [1st Dept 2012])

. Plaintiff’s reliance on this case underscores plaintiff’s failure to

establish that a safety device failed to perform its function and prevent his injury. Accordingly,

plaintiff has failed to establish entitlement to judgment as a matter of law as to his Labor Law §

240 (1)

.

Labor La w § 200

It is well

- settled law that an owner or general contractor or its agents will not be found

liable under common law or Labor Law § 200 where it has no notice of any dangerous condition

which may have caused the plaintiff’s injuries, nor the ability to control the activity which caused

the dangerous condition. See Russin v Picciano & Son , 54 NY2d 311[1981]; see also Rizzuto v

Wenger Contr. Co. , 91 NY2d 343, 352 [1998]; Singleton v Citnalta Constr. Corp. , 291 AD2d 393,

394 [2002]

.
Here, as discussed above, plaintiff has established, as well as a review of the records

submitted in support and in opposition to the various motions for summary judgment, that

Global, as the subcontractor responsible for the fabrication and the installation of the subject

panels is liable. This finding does not preclude a finding in Global’s favor regarding its

indemnification claims as against Jemco . R egardless of what caused the panel to fall, it is not

disputed that either cause, the fabrication, direct causal connection of the alleged defective

condition by Global or the installation, which was contractually the obligation of Global then

subcontr acted to Jemco, would entitle plaintiff to summary judgment on his common law

negligence and Labor Law § 200 claim. Accordingly, plaintiff has established entitlement to

judgment as a matter of law as against Global.

Motion Sequence 00 5 INDEX NO. 160214/2019

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Defendants/third

- party plaintiffs, RP1185 and Lendlease, move to dismiss the Labor Law

§§ 200

, 241(6) claims as against them and seek contractual indemnification from Glo bal as well

as dismissal of Global’s cross claims . Jemco cross moves to dismiss the s econd third

- party

complaint 1

. Plaintiff does not oppose this motion.

RP1185 and Lendlease have established a prima facie entitlement to the relief sought,

with respect to the dismissal of plaintiff’s claims. Accordingly, that portion of RP1185 and

Lend lease’s motion is granted without opposition.

As to the portion of the motion that seeks contractual indemnification from Global, that

portion is granted. RP1185 and Lendlease has established that it was not negligent , that it did not

supervise or control the injury inducing work, and the record is clear , as discussed above, that

accident was a result of work Global was contracted to do, whether or not it was a result of its

own or its subcontractors negligence.

In opposition, Global contends that RP1185 and Lendlease seeking dismissal of

plaintiff’s claims is inconsistent with its claim for contractual indemnification. The Court does

not agree. Global further argues, that Jemco was solely responsible for supervision of the work

that caused the accident and thus Global cannot be required to indemnify RP1185 and Lendlease.

This argument fails, however, to address the language in its contract with RP1185 and Lendlease

that specifically provides in pertinent part that Global will defend, indemni f y and hold harmless

against any claim

“caused by, arising out of, resulting from, or occurring in connection with the work by contractor, its subcontractors [...] or their agents, servants, or employees, whether or not caused in part by the active or passive negligenc e or other fault of a party indemnified hereunder”

1 Notwithstanding Jemco’s improper cross motion, as it is made against the non

- movant, it is denied for the reason addressed when discussion motion sequence 006, Global’s motion for summary judgment. INDEX NO. 160214/2019

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See NYSCEF Doc. 119, p. 13.

Accordingly, the Court finds that RP1185 and Lendlease have established entitlement to

contractual indemnification from Global, as well as dismissal of Global’s cross claims. Global

has failed to raise a triable issue of fact.

Motion Sequence 00 6

Defendant

/ t hird

- party defendant/s econd third

- party plaintiff , Global, moves for summary

judgment seeking to dismiss Labor Law §200, § 240(1), and §241(6) 2 , and common law

negligence claims against it and for contractual indemnity and breach of contract for failure to

procure insurance against Jemco . Jemco and plaintiff oppose the instant motion

.
In support of its motion, Global contends that the Labor Law § 200 claims sho uld be

dismissed as against it because it was not negligent, that plaintiff’s claims pursuant to Labor Law

§ 240 (1) also require dismissal as the accident did not arise from the inadequacy or absence of a

safety device. Further, Global contends that the accident was caused by the negligence of Jemco,

thus triggering Jemco’s obligation to indemnify pursuant to the parties’ contract.

In opposition to the motion plaintiff contends that for the same reasons it seeks summary

judgment against Global, Global’s motion for summary judgment requires denial.

For the same reasons the Court denied plaintiff’s motion for summary judgment on its

Labor Law § 240 (1) claims, plaintiff has not established that a defective safety device caused

the accident, likewise, Global has not established that the inadequacy of a safety device or a

failure to provide a safety device did not cause the accident.

2 Plaintiff does not oppose the portion of the motion tha t seeks dismissal of the claims pursuant to Labor Law § 241(6) and withdraws those claims as to all defendants in its opposition to Global’s motion. INDEX NO. 160214/2019

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As to the portion of the motion that seeks relief as against Jemco, the Court finds that

Global has failed to establish entitlement to judgment as a matter of law. As has been discussed

at various points in this decision, the cause of the accident is in dispute. The expert affidavits

provided both in support of the motion and in opposition creates an i ssue of fact that cannot be

resolved in a motion for summary judgment. As to the argument that Jemco failed to procure the

proper insurance based on the fact the insurer failed to cover Global in the instant matter, the

Court rejects that argument, for al l the reasons stated above. Accordingly, it is hereby

ORDERED that plaintiff’s motion for summary judgment, motion sequence 004 is

granted in part as to its common law negligence and Labor Law § 200 claims as against Global ;

and it is further

ORDERED th at RP1185 and Lendlease’s motion for summary judgment, motion

sequence 005, is granted in its entirety and Jemco’s cross

- motion is denied as improper ;

ORDERED that Global’s motion for summary judgment, motion sequence 006 is denied

in its entirety.

1/5/20 24 DATE LYLE E. FRANK, J.S.C.

CHECK ONE: CASE DISPOSED X NON

- FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 160214/2019

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