NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 08/29/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX LINDA BORRERO, Index No: 21558/12E Plaintiff, E-File Case ORDER WITH ACC CONSTRUCTION CORPORATION, THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, and LIBERTY CONTRACTING CORPORATION, NOTIC_E OF ENTRY Defendants. ACC CONSTRUCTION CORPORATION, Third-Party Plaintiff, T.P. Index No.: 4305/2013E SOUTH BAY AIR SYSTEMS LLC, Third-Party Defendant. ACC CONSTRUCTION CORPORATION and THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Second T.P. Index No.: 43116/2014E Second Third-Party Plaintiff, LIBERTY CONTRACTING CORPORATION, Second Third-Party Defendant. ACC CONSTRUCTION CORPORATION and THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE Third Third-Party CITY OF NEW YORK, Index No.: 43116/2014E Third Third-Party Plaintiffs, 1 of 10
NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 08/29/2018 SOUTH BAY AIR SVSTEMS, LLC and EURO- BUILD CONSTRUCTION CORPORATION, Third Third-Party Defendants. PLEASE TAKE NOTICE that the within is a true copy of the Order issued by the Honorable Lizbeth Gonzalez, J.S.C. on August 16, 2018, and entered with the Clerk of this Court on August 24, 2018. Dated: New York, New York August 29, 2018 GOLDBER A, LLP By bseplr) bliv( Esq. Attorneys for Third-Party Defendant/Third Third-Party Defendant South Bay Air Systems, Inc. 711 3rd Avenue, 19* Floor New York, New York 10017 P: 646.292.8734 / F: 646. 292.8701 GS File No.: 1677.0006 Email: joliva@goldbergsegalla.com TO: DAVID HOROWITZ, PC Attorneys for Plaintiff LINDA BORRERO 171 Madison Avenue, Suite 1300 New York, New York 10016 (212) 684-3630 PILLINGER MILLER TARALLO, LLP Attorneys for Defendant/Third-Party Plaintiff ACC CONSTRUCTION CORPORATION and THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK 570 Taxter Road, Suite 275 Elmsford, New York 10523 914-703-6300 File No. AGB-00281/JTM 2 of 10
NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 08/29/2018 TRAUB LIBERMAN STRAUS & SHREWSBERRY LLP Attorneys for Defendant/Third-Party Plaintiff LIBERTY CONTRACTING CORP. Mid-Westchester Executive Park 7 Skyline Drive Hawthorne, New York 10532 914-347-2600/ F: 212-685-8617 WEINER, MILLO, MORGAN & BONANNO, LLC Attorneys for Third Third-Party Defendant EURO-BUILD CONSTRUCTION CORPORATION 220 Fifth Avenue, 10* Floor New York, New York 10001 (212) 213-1220 3 of 10
NYSCEF DOC. NO. 249 RECEIVED NYSCEF: 08/29/2018 (FILED : BRONX COUNTY CLERK 08 /24/2018 01:-53 P-H INDEX N 201ÍE NYSCEF 1)OC. NO. 2 4 5 NE W YORK SUPREME COURT - COUNTY OF lj fl½yed NYSC F: 08/24/2018 PART 10 Case Disposed ana SUPREME COURT OF THE STATE OF NEW YORK Settle Order O COUNTY OF BRONX: Schedule Appearance O ------------------ ----------------------------X BORRERO,LINDA Index Ne. 0021558/2012 Hon. LIZBETH GONZALEZ, PRESBYTERIAN HOSPITAL Justice Supreme Court The following papers numbered 1 to Read on this motion, SUMMARY JUDGEMENT DEFENDANT Noticed on July 31 2017 and duly submitted as No. on the Motion Calendar of PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits Replying Affidavit and Exhibits Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Upon the foregoing papers this 7tmvd - partyd.efeudant Sousia BRy's Mohan ts otsciplest m st clard M¹rs m A amtax ed Dated: Hon. L ZALEZ, J.S.C. 1 of 7 4 of 10
NYSCEF DOC. NO. 249 RECEIVED I N DEXNYSCEF: NO. 21558/2012E 08/29/2018 FILED : BRONX COUNTY CLERK 08/24/2018 01: 53 PM) NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 08/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX: IAS Part 10 ------------------------ ---------------------------X Linda Borrero, Plaintiff, DECISION AND ORDER, Index No. 21558/2012E ACC Construction Corporation, The Trustees of Columbia University in the City of New York and Liberty Contracting Corporation, Defendants. ---------- ------------ -------x ACC Construction Corporation, Third-Party Plaintiff, Third-Party Index No. 43035/2013E South Bay Air Systems, LLC, Third-Party Defendant. ---------------- ------- -- - ---- -X ACC Construction Corporation and The Trustees of Columbia University in the City of New York, Second Second Third-Party Plaintiffs, Third-Party Index No. 43116/2014E Liberty Contracting Corporation, Second Third-Party Defendant. --- -----------..-- --------X ACC Construction Corporation and The Trustees of Columbia University in the City of New York, Third Third Third-Party Plaintiffs, Third-Party Index No. 43116/2014E South Bay Air Systems, LLC and Euro-Build Construction Corporation, Third Third-Party Defendants. --------------------- -----------------------x On the date of her accident, plaintiff Linda Borrero worked for South Bay Air Systems LLC ("South Bay") as an experienced journeyman mechanic and sheet metal worker. Plaintiff alleges that due to defendants' ñêg igence, she tripped on a hole, fell and sustained personal injury on 5/18/12 in violation of Labor Law 200 and 241 (6) and Industrial Code 23-1.7 (d), (e)(1) and (e)(2). The 1 2 of 7 5 of 10
NYSCEF DOC. NO. 249 RECEIVED INDEX NYSCEF: NO. 215508/29/20188 / 2012E IFILED: BRONX COUNTY CLERK 08/24 / 2018 01:53 M NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 08/24/2018 accident occurred on the eighth floor of a construction site located at 650 West Building" Columbia University Medical Center's "Black in New York County. 168th Street known as All claims against defendant The New York and Presbyterian Hospital were discontinued pursuant to stipulation. Defendant The Trustees of Columbia University in the City of New York ("Trustees") owns the subject premises. Defendant ACC Construction Corporation ("ACC") was the, Trustees' general contractor. The Trustees and ACC move pursuant to CPLR 3212 for summary judgment dismissal of plaintiff's common law negligence and Labor Law 200 and 241 (6) claims, all cross-claims and counterclaims and for contractual indemnification against South Bay ("Trustee/ACC motion"). ACC subcontracted South Bay Air Systems LLC ("South Bay"), plaintiff's employer, to perform the HVAC installation at the premises. South Bay moves pursuant to CPLR 3212 for summary judgment dismissal of the complaint and the third-party and third third-party actions against it. ACC subcontracted with Liberty Contracting Corporation ("Liberty") to perform demolition work. Liberty maintains that because it completed its work several months prior to the accident, it is entitled to summary judgment dismissal of all Labor Law, common law negligence, contractual indemnification and breach of contract claims and cross-claims against it. ACC subcontracted with Euro-Build Construction Corporation ("Euro-Build") to perform masonry work. Euro-Build moves pursuant to CPLR 3212 for summary judgment dismissal of the third third-party summons and complaint. Plaintiff opposes the Trustee/ACC motion. No one witnessed the accident. The parties offer the deposition transcripts of Linda Borrero (plaintiff), Mike Kolgenovic (project manager - ACC), Bruce Boyle (laborer - ACC), Jeffrey Buscemi (field supervisor - South Bay), Sal Prainto (supervisor - Liberty) and Hector Virata (principal - Euro-Build); the Trustees/ACC contract; the ACC/South Bay contract; the ACC/Euro-Build contract; photographs; and other documents. PLAINTIFF'S LABOR LAW 200 CLAIM Labor Law 200 codifies the common-law duty imposed upon an owner or contractor to provide workers with a safe place to work. Liability under Section 200is limited to persons who exercise supervision and control over the work performed at the site or have actual or constructive notice of the dangerous condition (Comes v New York State Electric and Gas Corp., 82 NY2d 876 [2003]). No liability attaches to the owner under the common law or under Labor Law 200 to the extent that an alleged defect or dangerous condition arises from a contractor's methods and the owner exercises no supervisory control over the operation (Lombardi v Stout, 80 NY2d 290 (1992]). Summary judgment is thus available where there is no evidence that a defendant created the condition that caused the workplace accident (Vera v [15t Low Income Marketing Corp., 145 AD3d 509 Dept 2016]). 2. 3 of 7 6 of 10
NYSCEF DOC. NO. 249 RECEIVED INDEX NYSCEF: NO. 21558/2012E 08/29/2018 ED : BRONX COUNTY CLERK 0 8 / 24 / 2018 01: 53 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 08/24/2018 subject The fact that a defendant was not plaintiff's employer and did not supervise his or her work does not, however, automatically preclude a finding of liability (Urbina v 26 Court Street Associates, LLC, 12 AD3d 225 [1" Dept 2004]). An implicit precondition to this duty "is that the party charged with that responsibility has the authority to control the activity bringing about the injury" (Comes v NYS Elec & Gas Corp., 82 NY2d 876 [1993); Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]). At deposition, plaintiff Borrero testified that South Bay worked in phases at the location' where the eighth-floor laboratory was being restored. Plaintiff worked in phases for less than a year at the site. For several days before the accident, plaintiff and her co-workers cleaned and gathered reusable materials because South Bay had completed a phase and was leaving the job. The eighth floor construction site was three-quarters the size of a football field and shaped like a maze. Only South Bay was working at the time. Workers directed themselves, using a blueprint. Alex Rivera was South Bay's foreman and at no time did the Trustees or ACC direct the South Bay employees. Plaintiff testified that on the date of the accident, "(a)t the entryway by the loading dock elevator, as I was coming out, I tripped in a crack" in the concrete floor. Plaintiff, a member of Sheet Metal Workers Local 28, received her journeyman certificate in 1997. Plaintiff never spoke to her foreman, her shop steward, the defendants or anyone - other than an electrician - about the cracks. Although she walked the floor prior to the accident, she did not notice the crack before she fell. Q. Had you walked across that floor before May 18th of 2012? A. Yes. Q. And had you noticed the crack before May 18th of 2012? A. Not that one. Q. Had you noticed other cracks? A. There were many. Q. When you say many, was the floor cracked throughout the eighth floor? A. Pretty much. Q. Were they individual cracks or were they singular cracks running the length of the floor? A. Just pocket. Everywhere there was a crack. Q. Everywhere? A. Yes. All about the job. A lot of things weren't on there. Q. Did you ever complain to anybody about the cracks in the floor? A. Not officially. Q. What do you mean, officially? A. I did mention that the floors were so bad because we always had to set the ladder certain kind of ways. So it was always a problem. Q. And who did you say that to? A. I believe it was an electrician that was there. Plaintiff is unable to describe the crack. She acknowledged that the crack was carrected with a sealant and conceded that a photograph which she took post-accident does not depict the crack on which she tripped. Plaintiff described the condition of the floor of the room where her accident occurred, that changed during the course of work: "The floors were being destroyed when the brisks 3 4 of 7 7 of 10
NYSCEF DOC. NO. 249 RECEIVED INDEX NYSCEF: NO. 21558/2012E 08/29/2018 FILED : BRONX COUNTY CLERK 08 / 24 / 2018 01: 53 PM NYSCEF boc. NO. 245 RECEIVED NYSCEF: 08/24/2018 fell down, tools fell down. Whatever hit the concrete, cracked it." Plaintiff dropped her own tools onto the floor when she installed ductwork in the ceiling. Plaintiff testified that she "personally dropped very hard old iron duct work by the truck loads never floors." thinking of the. Plaintiff was unaware of any complaints to South Bay about the cracks prior to her accident. She does not recall the depth or the size of the crack where she fell. She did not immediately report, the accident or show anyone where it occurred until several days after the accident. Bruce Boyle, an ACC laborer, testified that work on the eighth floor of the Black Building was a gut renovation requiring removal of the vinyl floor. The floor base was concrete. Mr. Boyle testified that although hammers, crowbars, sawzalls and sledgehammers are typically used in demolition work, he did not see any cracks in the concrete. Jeffrey Buscemi, South Bay's field engineer, testified that no one complained to him about floor cracks prior to the accident. Plaintiff told Mr. Buscemi about the crack and showed it to him. Having observed the area with the claimed crack, Mr. Buscemi testified that the crack did not look as deep as floor" depicted in a photograph shown to him. The "imperfection in the - 5" maybe long and a width "smaller than the width of a pencil" - depression" was more like a "little with no height differential. There is no evidence that defendants Trustees and ACC created the conditions that caused her accident. By plaintiff's own admission, defendants had no supervisory control over plaintiff. The Trustees and ACC moreover had no control over the means and methods of the operations undertaken at the time of plaintiff's accident. None of the transcripts - including plaintiff's own deposition - provide proof that defendants Trustees and ACC were notified of a possible defect. The record thus provides insufficient evidence, as a matter of law, to rebut Trustee's and ACC's argument that they did not exercise sufficient control of the activities of ACC's subcontractors to justify the imposition of liability ( Norducci v Manhasset Bay Associates, 96 NY2d 259 [2001]). For all these reasons, plaintiff's common-law aêg gêace and Labor Law 200 claims are dismissed. PLAINTIFF'S LABOR LAW 241 (6) CLAIM Labor Law 241(6) imposes a nondelegable statutory duty of reasonable care upon contractors, owners and their agents to provide reasonable adequate safeguards to persons engaged in construction, excavation or demolition work even in the absence of supervision or control ( Rizzuto v L.A. Wenger Contr. Co., 91 NY 2d 343 [1998]; Ross v Curtis-Palmer Hydro-Elec Co., 81 NY2d 494 [1993]). Section 23 of the NYS Industrial Code sets forth special regulations for the protection of persons employed in construction, demolition and excavation operations to protect them, inter alia, from the hazards of falling (12 NYCRR 23-1.2). A violation of a specific Industrial Code must be established to prevail on a Labor Law 241(6) cause of action (Ross v Curtis-Palmer Hydro-Elec Co., 81 NY2d 494, supra). In compliance with this provision, plaintiff cites Industrial Code 23-1.7 (d), (e)(1) and (e)(2) which state:. 4 5 of 7 8 of 10
NYSCEF DOC. NO. 249 RECEIVED INDEX NYSCEF: NO. 21558/2012E 08/29/2018 [FILED: BRONX COUNTY CLERK 08/24/2018 01: 53 PM) NYSCEF boc. NO. 245 RECEIVED NYSCEF: 08/24/2018 12 NYCRR 23-1.7 (d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which, may cause slippery footing shall be removed, sanded or covered to provide safe footing. (e) Tripping and other hazards. (1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed. around" Plaintiff testified she was "looking for supplies that were left hallway" laboratory work was done to go "into the hallway, an unfinished room" was. She was "just coming out the when she tripped. and left a room where where the main elevator Q. And did your accident occur within that room or outside of the room? A. I was still inside the room. Q. And were you walking? Were you turning around? What were you doing at the time your accident occurred? A. Walking straight out the room. None of the industrial Code sections cited by plaintiff are dispositive. Plaintiff does not allege that she slipped nor is there any evidence of ice, snow, water, grease or any other substance that would cause slippery footing (12 NYCRR 23-1.7 [d]). Plaintiff testified that she fell inside a room, not in a passageway (12 NYCRR 23-1.7 [e][1]). Similarly, there is no testimony that there were scattered tools, materials, sharp projections, dirt or debris that caused the accident (12 NYCRR 23-1.7 [e][2]). Plaintiff's Labor Law 241 (6) claim is accordingly dismissed. Summary judgment is warranted where a movant shows through admissible evidence that the opposing party has no defense to the cause of action or that the cause of action has no merit (CPLR 3212; Martin v Briggs, 235 AD2d 192 [1" Dept 1997]). There must be no doubt about the existence of a triable issue of fact since summary judgment deprives the litigant of his or her day in court (Molinav Phoenix Sound, Inc., 297 AD2d 595, 596 [1st Dept 2002]; see Morris v Lenox Hill Hosp., 232 AD2d 184, 185 [1st Dept 1996], affd 90 NY2d 953 [1997]). In order to establish a prima facie case of negligence, a plaintiff must demonstrate that.the defendant either created the condition that caused the accident or had actual or constructive notice of the condition. It is well settled that the defendant, as the movant for summary judgment, bears the 5 6 of 7 9 of 10
NYSCEF DOC. [FILED: BRONX NO. 249 RECEIVED INDEX NYSCEF: NO. 21558/2012E 08/29/2018 COUNTY CLERK 08/24/2018 01:53 W NYSCEF boc. NO. 245 RECEIVED NYSCEF: 08/24/2018 initial burden to establish lack of notice as a matter of law (Smith v Costco Wholesale Corp., 50 AD3d [1" 499 Dept 2008]; Moreira v City of New York, 4 AD3d311[2004]). Having viewed the evidence in the light plaintiffs' most favorable to the plaintiff, and having drawn every available inference in the favor ( De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]), the court finds that defendants met their burden of proof and grants their motions for summary judgment. The complaint and all claims, cross-claims and counterclaims are dismissed.. A copy of this Decision and Order shall be served within 30 days. Dated: 16 August 2018 So ordered, Hon. Lizbeth nzález, J.S.C. 6 7 of 7 10 of 10