Upon the foregoing papers, the motions listed above are decided in accordance with the annexed decision and order. Upon the foregoing papers, the motion of Third- Party Defendant and Second-Third-Party Defendant Impact Construction Corp. (hereinafter “Impact Construction”), for summary judgment dismissing all claims against it, and the motion of defendant Urban Builders Group, Inc. (“Urban”) for, inter alia, judgment dismissing all claims against it, and judgment against defendant Impact Construction for common law and contractual indemnity, and for judgment for breach of contract for failure to procure insurance, are consolidated and decided as follows. This Court previously granted the motion of the plaintiffs for summary judgment as to liability against defendant Urban on their claim under Labor Law 240(1). (See Motion Sequence No. 6). Plaintiff was employed on a construction project to renovate a four-story townhouse located at 69 Willow Street in Brooklyn, New York. It is disputed whether the plaintiff was employed by third party defendant Impact Construction Corp. (“Impact Construction”) or third party defendant Impact Contracting Services, Inc. (“Impact Contracting”) — companies owned by the same principle. Defendant Urban was the general contractor. On November 21, 2012, plaintiff was installing plywood on the roof. Plaintiff and another worker were directed by the foreman to move a “sheet of glass or metal” measuring approximately 3 feet square, ostensibly a skylight,1 on the roof of the structure. When the plaintiff and his co-worker lifted the skylight, plaintiff stepped forward and fell through an unsecured opening located directly underneath. Plaintiff testified that he was unaware of the presence of the opening, and that after he stepped forward, he fell approximately 13 feet through the opening to the floor of the room below the roof. With respect to the issue of the identity of plaintiff’s employer, when plaintiff was first deposed by defendant Urban on January 12, 2015, he testified that his employer was “Solid Framers.” At his second deposition, plaintiff stated that, “I believe [my employer] was called Impact Construction, I’m not exactly sure. I don’t remember.” Plaintiff further testified that his “boss,” Jose Modesto La Ray, had changed the name of the company from Solid Framers to Impact Construction “after [plaintiff's] accident”. The documentary evidence shows that Impact Contracting signed the original purchase order for the project with Urban, but that Impact Construction executed the indemnity agreement. The principal of Impact Construction claims that he executed the indemnity agreement in error, using the wrong entity, and that Impact Contracting should have signed the indemnity agreement. H further asserts that this error was made known to Urban. Despite the foregoing, invoices were submitted on this job by Impact Construction, and a Certificate of Insurance was provided to Urban listing Impact Construction. Urban issued payment to Impact Construction, by check, and it is not denied that the checks were accepted and cashed. In view of the confused documentary record, Impact Construction argues that the Workers Compensation Board (WCB) determined that Impact Contracting was plaintiff’s employer, and that consequently further consideration of this issue is precluded. Under the doctrine of collateral estoppel, a party is precluded from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same’” (Vitello v. Amboy Bus Co., 83 AD3d 932, 933, 921 N.Y.S.2d 159, quoting Ryan v. New York Tel. Co., 62 NY2d 494, 500, 467 N.E.2d 487, 478 N.Y.S.2d 823). “The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349, 712 N.E.2d 647, 690 N.Y.S.2d 478). The doctrine does not apply here, as plaintiff has not established that the identity of the employer was a contested issue, or that it was addressed or resolved at the WCB. The WCB documents annexed to the present motions include the plaintiff’s application, as well as a document entitled “NOTICE OF DECISION — NO INSURANCE CASE.” The notice of decision recites, “The case is continued to address the following issue(s): Employer-Employee Relationship, Proper Employer Entity, Cancellation Of Coverage, Proper Carrier. This case is not subject to the expedited hearing process and penalties.” Lastly, there is a settlement agreement, approved by the WCB, which recited that the employer is “Solid Frame Construction Corp.” Accordingly, it does not appear that the WCB addressed the issue of the proper employer, as the NOTICE OF DECISION document specifically states that the issue of “proper employer entity” is not resolved. Further, despite the plaintiff’s statement that the WCB recognized that Impact Contracting was the employer, and not Solid Frame, the settlement was in fact entered into by Solid Frame. (Reynoso v. Ahava 750, LLC, 185 AD3d 1074, 1076, 127 N.Y.S.3d 151, 153 [2d Dept. 2020] [plaintiff failed to demonstrate that the identity of her employer was a disputed issue at a proceeding before the Workers' Compensation Board, or that the Workers' Compensation Board specifically adjudicated that issue].) Issue preclusion does not apply here. Issues of fact clearly exist as to which entity was the plaintiff’s employer. This Court has previously addressed liability under Labor Law 240(1). With respect to liability under the common law and under Labor Law 200, it has not been shown that defendant Urban exercised supervision and control over the manner in which plaintiff’s work was performed. “[B]ecause plaintiff’s accident occurred due to the means and methods of accessing his work, which defendants did not direct and control, the common-law negligence and Labor Law §200 claims were correctly dismissed.” (Ferguson v. Durst Pyramid, LLC, 178 AD3d 634, 635, 117 N.Y.S.3d 12, 13-14 [1st Dept. 2019].) With respect to liability under Labor Law 241(6), plaintiff relies on Industrial Code 231.7, 23-1.15, 23-1.16, 23-1.17, and 23-1.30. As to 23-1.7, it is assumed that plaintiff asserts that a hazardous opening was not covered. 12 NYCRR 23-1.7 (b)(1)(i) states that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part.” That section does not apply “where covering the opening in question would have been inconsistent with filling it, an integral part of the job.” (Salazar v. Novalex Contr. Corp., 18 NY3d 134, 140, 960 N.E.2d 393, 396-397, 936 N.Y.S.2d 624, 627-628 [2011].) As the very purpose of the job was to remove the skylight (thereby exposing the opening) and then to cover it with plywood, this section does not apply. 12 NYCRR 23-1.16 (c) is inapplicable as no harness was provided. (Partridge v. Waterloo Cent. School Dist., 12 AD3d 1054, 1056, 784 N.Y.S.2d 767 [4th Dept. 2004]; Luckern v. Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 887, 722 N.Y.S.2d 632 [4th Dept. 2001]; Schutt v. Bookhagen, 2020 NY App. Div. LEXIS 4755, *5 [4th Dept. 2020].) Section 1.15 relating to safety railings is inapplicable for the same reason that 23-1.7 is inapplicable, as the presence of safety railings would present completion of the work. Section 1.16 relating to life nets is inapplicable as no life nets were provided. 12 NYCRR 23-1.30 relates to illumination and has no application here. Those issues not addressed herein are found to be without merit. Accordingly, it is hereby, ORDERED that the motion of defendant Urban is granted only to the extent of dismissing the claims of the plaintiff based on the common law, Labor Law 200, and Labor Law 241(6), and is otherwise denied, and it is further ORDERED that the motion of defendant Impact Construction is denied. This is the Decision and Order of the Court. Dated: October 6, 2020
