### Prunty v Port Auth. of N.Y. & N.J. 2024 NY Slip Op 32412(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 157665/2016 Judge: Leslie A. Stroth 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.NYSCEF DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LESLIE A. STROTH Justice -------------------------X

SEAN PRUNTY, JENNIFER PRUNTY, Plaintiff,

- V - THE PORT AUTHORITY OF NEWYORK AND NEW JERSEY, 3 WTC PROPERTIES LLC,3 WTC HOLDINGS LLC,3 WORLD TRADE CENTER LLC,SILVERSTEIN PROPERTIES, INC.,TISHMAN CONSTRUCTION CORPORATION, TISHMAN CONSTRUCTION CORPORATION OF NEWYORK, TISHMAN REALTY & CONSTRUCTION CO., INC., Defendant.

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

THE PORT AUTHORITY OF NEWYORK AND NEWJERSEY, 3 WTC PROPERTIES LLC, 3 WTC HOLDINGS LLC, 3 WORLD TRADE CENTER LLC, SILVERSTEIN PROPERTIES, INC., TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, TISHMAN REALTY & CONSTRUCTION CO., INC.,

DOKA USA, LTD., Third-Party Plaintiff,-againstThird-Party Defendant.



### -------------------------- ---X DOKA USA, LTD., Fourth-Party Plaintiff,-VROGER & SONS CONCRETE, INC., Fourth-Party Defendant. --------------------X

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
1 of 10 PART 12M INDEX NO. 157665/2016 MOTION DATE N/A, N/A MOTION SEQ. NO. 005 006

AMENDED DECISION + ORDER ON MOTION

Third-Party Index No. 595578/2018

Page 1 of 10 

### [* 1]NYSC~F DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024

The following e-filed documents, listed by NYSCEF document number (Motion 005) 201, 202, 203, 204, 205,206,207,208,209,210,211,212,213,214,215,216,217,218,219,220,221,222,223,224,225, 226,252,253,254,276,281,282,283,286,287,288,300 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 006) 227, 228, 229, 230, 231,232,233,234,235,236,237,238,239,240,241,242,243,244,245,246,247,248,249,250,251, 255,256,257,258,259,260,261,262,263,264,265,266,267,268,269,270,271,272,273,274,277, 278,279,284,285,293,294,295,296,297,298,301 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER


### Plaintiffcommenced this labor law action for injuries sustained on September 14, 2015 while he was using a Doka climbing system modeled "SKEl00" to do his work on the subject construction site. The Doka system raises up and it allegedly runs on hydraulics from a generator to keep the system suspended until certain pins are inserted and the platform is locked into place. At the time ofthe accident, Mr. Prunty was employed as a laborer for Roger & Sons Concrete, Inc. at 3World Trade Center, the latterhavingretained TishmanConstructionas the general contractor. This Court held oral argument on February 27, 2024 on the instant applications, including on plaintiffs motion for summaryjudgment on its Labor Law 240(1) claim against 3 World Trade Center, LLC, Tishman Construction Corporation, and Tishman Construction Corporation ofNew York. Plaintiffs summary judgment motion was granted on Labor Law 240(1) claim for the
reasons stated on the record. Decision was reserved on the remaining motions. 1 

### After review of

1 The Court notes that during the February 27th hearing, counsel for plaintiffindicated apotential withdrawal ofclaims against certain parties, which could include defendant Port Authority. The Court issued its decision on NYSCEF granting summary judgment on plaintiffs 240(1) claims against the remaining parties. However, on February 29, 2024, plaintiff filed a Partial Stipulation of Discontinuance on NYSCEF as to defendants 3 WTC Properties LLC, 3 WTC Holdings LLC, and Silverstein Properties, Inc. The Court then amended its original decision to comport that stipulation on Motion #004 on March 12, 2024. On March 22, 2024, the Court issued its decision on Motions #005 and #006.

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
2 of 10 Page 2 of 10 

### [* 2]NYSCEF DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024

the transcript from February 27, 2024, the Court is hereby amending its Decision and Order dated March 22, 2024 onthe subject motions as indicated. Third-Party defendantDokaUSAmoveshere to dismiss the third-party complaint, as well
as all crossclaims, and for summary judgment in connection with its fourth-party claims for contractual and common-law indemnification and contribution (Motion #005). The third-party complaint sets forth the following causes ofaction: 1) NegligentManufacture, Design, and Failure to Warn; 2) Strict Liability; and 3) Negligent Maintenance, Supervision, and Repair. Defendants Port Authority ofNew York and New Jersey, 3 World Trade Center LLC, Tishman Construction Corporation of New York, and Tishman Realty & Construction Co., Inc. also seek summary judgment and the dismissal ofthe complaint and all crossclaims and counterclaims made against them (Motion #006).2 

### * * * It is well-established that the "function of summaryjudgment is issue finding, not issue determination" 

### (Assafv Ropog Cab Corp., 153 AD2d 520 (1st Dept 1989) (quoting 

### Sillman v Twentieth Century-FoxFilm Corp., 3NY2d 395,404 [1957])). As such, the proponent ofa motion for summaryjudgment must tender sufficient evidence to show the absence ofany material issue offact andtherightto entitlementtojudgment as a matter oflaw

### (Alvarez v ProspectHospital, 68 NY2d 320 (1986); 

### Winegradv New York University Medical Center, 64 NY2d 851 (1985)). Once a party has submitted competentproofdemonstrating that there is no substanceto its opponent's claims and no disputed issues offact, the opponent, in tum, is required to "lay bare [its] proofand come forward with some admissible proofthat would require a trial ofthe material questions offact onwhich [its] claimsrest" 

### (Ferber vSterndent Corp., 51 NY2d782, 783 (1980)).

2 Doka also filed a Cross-Motion to deny Motion #006 and for summaryjudgment dismissing defendants' ThirdParty Complaint in its entirety.

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
3 of 10 Page 3 of 10 

### [* 3]NYSCEF DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024

The party opposing a motion for summaryjudgmentis entitledto all favorable inferences that can be drawn from the evidence submitted (See Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1st Dept 1990)). The Court shall first address Doka's motion for summaryjudgment and dismissal ofthe claims for contractual and common-law indemnification and contribution. It is well-established that a party cannot be indemnified for their own negligence, and contractual indemnification clauses are to be enforced only when the "intention to indemnify can be clearly implied from the language and purpose ofthe entire agreement, and the surrounding facts and circumstances" (See Masciotta vMorse DieselInt 'l, Inc., 303 AD23d 309 (1stDept2003), citing Drzewinski vAtlantic Scaffold & Ladder Co., 70 NY2d 774 (1987); see also Campos v 68 E. 86th St. Owners Corp., 117 AD2d 593 (1st Dept 2014)). As to common-law indemnification, the one seeking indemnity must prove "...not only that the proposed indemnitor's negligence contributed to the causation ofthe accident, but also thatthe party seeking indemnity was free from negligence" (See Martins vLittle 40 Worth Assoc., Inc., 72 AD3d 483, 484 (1st Dept 2010) (citation omitted)). Similarly, contribution is only available where tortfeasors combine to cause an injury (Godoy vAlabaster of Miami, 302 AD2d 57 (2d Dept 2003), lv dismissed 100 NY2d 614 (2003) (citations omitted)). The Agreement between Dokaand Roger & Sons demonstrates that Roger & Sons agreed to indemnify Doka and hold it harmless against damages incurred for claims arising from Roger & Sons negligence related to the use ofDoka's product, "except where such claims arise or are caused by as a result ofDokaUSA's sole negligence" (Exh U, 

### ~:[7). The Court observes the following from the "Doka Incident Report" written by Richard Barton, Senior Formwork Instructor with Doka, that creates an issue offact as to whether Doka
was negligent in designing the subject SKEIO0 system (Exh 21, p 2): "Had an accident on

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
4 of 10 Page 4 of 10 

### [* 4]NYSCEF DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024

SKEIO0...it lowered on its own. Bobby didn't even touch the remote, really. Itjust came down
... Claims the system lowered all by itself, bumped downward, not smooth, chattered downward." The Doka Incident Report further indicates that when Mr. Barton inspected the hydraulic unit, he noted that "I wentto the RL hydraulic unit. I opened the electrical access door. A sizzling egg sound was coming from inside and then the up and down actuators stated to actuate!" (Id.). Robert Gray, operator on the Doka system, testified that plaintiffwas injured when it retracted (Exh 17, p 37). Further, in the Affidavit ofMichael Stichter, an engineer, he opined that "Doka failed to adequately warnworkers ofthe pinchpointhazards during the foreseeable and intended operation ofthe system, and this failure was a proximate cause ofPrunty's incident" (Aff, 

### 131). The Court also notes that Tiago Azevedo, a safety coordinator for Roger & Sons, responded "yes" when asked ifthe system "malfunctioned or failed because it did something other than what Mr. Gray intended itto do" (Exh H, p 69). Thus, Doka's motion for summaryjudgmentfor contractual and common-law indemnification and contribution is denied. The Court also denies Doka's motion to dismiss the third-party complaint since sufficient evidence was provided to indicate the existence of a potential defect in or maintenance ofthe SKE100 system that may have caused plaintiff's mJunes. Finally, the Court shall address the remaining defendants' motion for summaryjudgment and dismissal ofthe complaint and all crossclaims and counterclaims. For plaintiffto establish liabilitypursuantto LaborLaw §241(6), a violation ofthe Industrial Code mustbe shown

### (See e.g. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993) (holding that Labor Law §241(6) imposes a non-delegable duty upon owners and general contractors and their agents for violation ofthe statute). "Since an owner or general contractor's vicarious liability under section 241(6) is

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
5 of 10 Page 5 of 10 

### [* 5]NYSCEF DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024

not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficientto prevent or cure must also be irrelevantto the imposition ofLaborLaw §241(6) liability" 

### (Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343 (1998)). Here, plaintiffs claim underLabor Law §241(6) is based onviolation of22 NYCRR §23- 1.5(c)(3) and 22 NYCRR §23-9.2(a): §23-1.5(c)(3): Condition ofequipment and safeguards. All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from thejob site ifdamaged. §23-9.2(a) Maintenance. All power-operated equipment shall be maintained in goodrepair and inproper operating condition at all times. Sufficientinspections ofadequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement
... To prevail on a claim under Labor Law §241(6), plaintiffmust demonstrate that his injuries were proximately causedby a violationofanIndustrial Codeprovision

### (See Ares v State, 80NY2d959, 960 (1992)). Antonio Gomes, foreman ofRoger & Son, indicated in his deposition that there were no ladders or other devices for anyone to climb in orderto insertthe pins and that Mr. Prunty did not have a chance to insert the pins as the platform started moving by itself (Exh 22, p 45). Thane Szilagyi, the construction safety manager for Tishman, testified that a ladder orplatform could be providedto a worker ifthey were going to insert a pinthat was elevated and out ofreach (Exh 10, p 131). The Court also notes thatthe DokaIncident Report documented an incoming voltage to be belowthe required 480V
- - "Withimproper voltage feeding the machine the internal converterto 24V to feed the lights and switches, in laymans terms, gets confused" (Exh 18). After being questioned onthe Dokasystemretracting while plaintiffattemptedto install a pin, Mr. Gray stated itwas "notsupposedto do anything" (Exh 17, p 36-38). Giventhatplaintiffhasprovided sufficient evidence to support this cause ofaction, defendants Port Authority ofNew York and NewJersey,

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
6 of 10 Page 6 of 10 

### [* 6]NYSCEF DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024

3 World Trade CenterLLC, TishmanConstructionCorporationofNewYork, and TishrnanRealty & ConstructionCo., Inc'smotion for summaryjudgmentand dismissal as toplaintiffsLaborLaw §241(6) cause ofactionbasedonviolationof22NYCRR §23-l.5(c)(3)and 22NYCRR §23-9.2(a) is denied. Regarding Labor Law §200, this section codifies the common law duty of an owner to provide construction workers with a safe place to work (See Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993)). Labor Law §200 and common law claims fall under two categories: "those arising from an alleged defect or dangerous condition existing onthe premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 133-144 (1st Dept 2012)). Under the first group, the owner had to haveeithercreatedthe conditionorhave actual orconstructivenotice ofit(Idat 144). Inthe second category, the ownerorgeneral contractoris liable if"itactually exercised supervisory control over the injury-producing work" (Id). Defendants argue that they did not exercise supervision or control over plaintiffs work,
nordid they create orhave notice ofany hazards since Mr. Prunty'sincidentarose from equipment used in the means and methods ofwork with his employer Roger & Sons. According to Nicholas Pazich, Vice President for Silverstein Properties, 3 World Trade Center, LLC was never present atthe Tower 3 site during constructionprior to the subject accident (Aff, ,-r4). Tishrnan's safety manager Mr. Szilagyi stated that he did not have the authority to direct the work ofsubcontractors and that their means and methods were their own (Exh D, p 17-24). However, Mr. Szilagyi latertestifiedto having "the authority to make sure and supervisethatthey
were performing the work a ccording to the guidelines required by Tishrnan" and that he "would walkthe site, ensure that things were -- conditions were clean, conditions were safe, that workers

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006

7 of 10 Page 7 of 10 

### [* 7]

### . NYSCEF Doc: NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024

were carrying on their work in a safe manner, that operations that I knew ofwere -- find out what
was going on during the day so I could know exactly what they were doing" (Id at p 19). Mr. Szilagyi also indicated that the Construction Manager's responsibilities were to conduct a daily inspection to ensure compliance with safety requirements (Exh E, p 164). Moreover, Doka Instructor Mr. Barton highlighted in his affidavit that "Mr. Sean Prunty
was not designated by Roger & Sons and therefore did not train orbecome certified in the use of the Subject System at either the WTC Tower 3 or any other site prior to his accident" (Aff, 14). Thus, defendants' motionfor summaryjudgmentfor LaborLaw §200 and commonlawnegligence is denied as to Tishman Construction Corporation of New York and Tishman Realty & Construction Co., Inc. However, the Courtgrantsthe motionfor summaryjudgmentonLaborLaw §200 and common law negligence by Port Authority ofNew York and New Jersey and 3 World Trade Center LLC, since plaintiff failed to demonstrate that either of these two defendants exercised any supervisory control over Mr. Prunty's injury-producing work or had actual or constructive notice ofor createdthe hazardous condition. Finally, although the Court's prior decision granting summary judgment to plaintiff on Labor Law 240(1) presumes denial of defendants' cross-motions for summary judgment, for clarity's sake, the Court shall address defendant Port Authority's motion for summaryjudgment
on Labor Law § 240(1) which states inpertinentpart: All contractors and owners andtheir agents...inthe 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 properprotectionto a person so employed. The statute imposes absolute liability upon owners, contractors, and their agents where a breach ofthis statutory duty proximately causes an injury (See Gordon v Eastern Railway Supply, Inc.,

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006

8 of 10 Page 8 of 10 

### [* 8]- NYSCEF DOC. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024



### 82 NY2d 555, 559 (1993); Ross v Curtis-Palmer Hydro-Elec. Co., 

### 81 NY2d 494, 500 (1993)); Rocovich v Consolidated Edison Co., 

### 78 NY2d 509,513 (1991). The First Department held that "[i]t is the responsibility ofthe contractor and owner - not the individual worker

- to provide and place appropriate safety devices at the particular work site so as to give proper protection to a person so employed" (Ramos v. PortAuthority, of New York andNew Jersey, 

### 306A.D.2d 147 (1st Dept. 2003)). "Labor Law §240(1) imposes absolute liability on building owners, construction contractors and their agents withregard to elevation-related risks to workers at construction sites" (Rodriguez v. Forest CityJaySt. Assocs., 

### 234 A.D.2d 68 (1 st 

### Dept 1996)). The Courtfinds the subjectincidenttobe gravity-related and is notpersuadedby defendant Port Authority's argument that plaintiffwas injured because ofmechanical operation or failure. Antonio Gomes, foreman ofRoger & Son, indicated in his deposition that plaintiffhad to elevate himselfand that there were no ladders or other devices for him or anyone for that matter to climb up to insertthe pins (Exh. 22, p 45). He further statedthat "whenyou elevate yourself, youhave a handle, and with the other hand

-- you [are] holding to a handle. The other hand will put the pin in. Once youputthe pinin, you come down to the platform, you[r'e] away from the moving parts" (Id). In addition, Thane Szilagyi, a construction safety manager for Tishman, testified in his deposition that a ladder or platform could be provided to a worker ifthey were going to insert a pin that was elevated and out ofreach (Exh 10, p 131), which was not done here. Therefore, defendant Port Authority's motion for summaryjudgment on Labor Law §240(1) is denied. Accordingly, it is hereby ORDERED, that third-party defendant Doka USA's motions to dismiss the third-party complaint in its entirety and all crossclaims, and for summaryjudgment in connection with its

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
9 of 10 Page 9 of 10 

### [* 9]

# . NYSCEF DOt. NO. 312 INDEX NO. 157665/2016 RECEIVED NYSCEF: 07/12/2024
fourth-party claimsfor contractual and common-lawindemnificationand contribution is denied in its entirety (Motion #005 & Cross-Motion); and it is further ORDERED, that defendants' motion for summaryjudgmentand dismissal as to plaintiffs. claimunder LaborLaw241(6) and 240(1) is denied (Motion#006). However, summaryjudgment is granted as to defendants Port Authority and 3 World Trade CenterLLC onLaborLaw §200 and
common law negligence. The Court further denies defendants' motion for common law indemnification and contribution, as well as their motion for dismissal of all crossclaims and counterclaims against them. The foregoing constitutes the Decision and Order ofthe Court.

Dated: July 12, 2024

CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

157665/2016 PRUNTY, SEAN vs. PORT AUTHORITY OF NEW Motion No. 005 006
10 of 10 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 

# 0 OTHER**□** REFERENCE

Page 10 of 10 

### [* 10]