ADDITIONAL CASES 395 Hudson New York, LLC, Third-Party Plaintiffs v. Collins Building Services, Inc., Third-Party Defendant DECISION & ORDER Motion Sequences 006, 007 and 008 are consolidated for disposition. In Motion Sequence 006, third-party defendant Collins Building Services, Inc. (“Collins”) moves for summary judgment pursuant to CPLR §3212 dismissing claims against it for common law indemnification, contractual indemnification, negligence, and breach of contract alleged in the Third-Party Complaint. In Motion Sequence 007, defendant/third-party plaintiff 395 Hudson New York, LLC (“Hudson”) moves for summary judgment pursuant to CPLR §3212 dismissing claims against it for negligence and violations of Labor Law §§200, 240(1), and 241(6) alleged in the plaintiff’s Amended Complaint, and for summary judgment against co-defendant, MBI Group (“MBI”), and Collins for common law indemnification, contractual indemnification, and breach of contract Hudson further moves for leave to amend its pleadings nunc pro tunc pursuant to CPLR §3025(b). On cross motion, plaintiff moves for partial summary judgment pursuant to CPLR §3212 against Hudson and MBI for violations of Labor Law §241(6). In Motion Sequence 008, defendant MBI moves for summary judgment pursuant to CPLR §3212 dismissing plaintiff’s claims against it for negligence and violations of N.Y. Labor Law §§200, 240(1), 241(6). This action was commenced on February 4, 2014. Plaintiff asserts causes of action sounding in common law negligence and Labor Law §§200, 240(1) and 241(6). Hudson filed a crossclaim against MBI alleging negligence, contractual indemnification, and common-law indemnification. Hudson commenced the third-party action alleging negligence, contractual indemnification, common-law indemnification, and breach of contract against Collins on April 19, 2016. The Note of Issue was filed on February 26, 2019. The court considers all of the motions decided herein to have been filed timely. See New York State Executive Order 202.60. In May 2013, defendant MBI was retained by non-party owner Cushman & Wakefield to perform a renovation for the Carpenter’s Union at 395 Hudson Street (the “Building”). As part of this work, MBI was required to protect existing carpeting that was not going to be replaced during the renovation. MBI placed pieces of Masonite on the carpeting butting up against each other and held together with blue duct tape or masking tape. Collins was retained to perform cleaning services in the Building. Plaintiff was an employee of Collins on September 3, 2013 when she allegedly tripped and fell on the ninth floor of the Building around 7:00 p.m. or 7:15 p.m. and allegedly sustained injuries thereby. Plaintiff alleges that she tripped on a piece of Masonite that was elevated approximately two inches because it did not have tape connecting it to the adjacent piece of Masonite. Plaintiff had cleaned the Building since approximately 2004 and testified that she had cleaned the ninth floor more than one hundred times — and had been on a specific routine which included cleaning the ninth floor for approximately three weeks prior to the alleged incident. Plaintiff collected workers’ compensation subsequent to the alleged incident and states that she has not been able to work since. Summary Judgment Standard “The drastic remedy of summary judgment may only be granted where, viewing the facts in the light most favorable to the non-movant, ‘the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact,” and the nonmoving party has subsequently ‘failed to establish the existence of material issues of fact which require a trial of the action’”…Summary judgement disposition is inappropriate where varying interferences may be drawn, because in those cases it is for the factfinder to weigh the evidence and resolve any issues necessary to a final conclusion.” Dormitory Authority v. Samson Constr. Co., 30 N.Y.3d 704, 717 (2018) (citing Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012)); see also Cambridge Factors, Inc. v. Stagecoach Bus Sys., Inc., 155 A.D.2d 267, 268 (1st Dep’t 1989) (“The function of the court upon a motion for summary judgment is issue finding, not issue determination”). Common Law Negligence and Labor Law §200 “Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. ‘Claims for personal injury under [Labor Law §200] and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed.’ ‘Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work’. ‘Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it’.” Prevost v. One City Block LLC, 151 A.D.3d 531, 533-34 (1st Dep’t 2017) (quoting Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143-44 (1st Dep’t 2012)). Plaintiff argues that she was caused to sustain injuries as a result of both a defective condition and the manner in which her work was performed. “It is well settled that in a premises related action, owners and general contractors may be held liable for injuries caused by a defective condition if it is demonstrated that the owner or general contractor created the condition or that it had actual or constructive notice of the condition for such a period of time, that, in the exercise of reasonable care, it should have corrected the problem.” Hauptner v. Laurel Dev., LLC, 65 A.D.3d 900, 902 (1st Dep’t 2009). Plaintiff argues that defendants had constructive notice of the condition, but has not produced any testimony or documentary evidence that could establish how long the condition existed prior to Plaintiff’s accident. “The absence of evidence demonstrating how long a condition existed prior to a plaintiff’s accident constitutes a failure to establish the existence of constructive notice as a matter of law.” Early v. Hilton Hotels Corp., 73 A.D.3d 559, 561-562 (1st Dep’t 2010); see also Romeo v. Property Owner (USA) LLC, 61 A.D.3d 491, 491-492 (1st Dep’t 2009) (“Plaintiff’s claims pursuant to Labor Law §§200…were properly dismissed…Plaintiff’s section 200 claim and common-law negligence claim were unsupported by evidence to indicate that the owner and general contractor either had notice of the alleged hazardous tile condition…”); Atashi v. Fred-Doug 117 LLC, 87 A.D.3d 455, 456 (1st Dep’t 2011) (“Defendants also established the absence of constructive notice inasmuch as there is no record evidence as to how long the strap was on the sidewalk prior to her fall and plaintiff testified that she did not see the strap she alleges caused her to fall until after she fell.”).1 Defendants here have established the absence of constructive notice inasmuch as Plaintiff has not offered evidence establishing how long the defective condition existed prior to her fall and Plaintiff testified that she did not see the raised Masonite she alleges caused her to fall until after she fell.2 With respect to the manner in which Plaintiffs work was performed, “the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work.” Cappabianca, 99 A.D.3d at 144. Plaintiffs argument that Defendant Hudson was “on notice” of potential hazards such as the raised Masonite as a matter of law because Cushman & Wakefield, a non-party, maintained an office on the first floor (the accident occurred on the ninth floor) and there was a security guard contracted by a building tenant near the alleged incident is insufficient to establish supervisory control. See, e.g., Burkoski v. Structure Tone, Inc., 40 A.D.3d 378, 380-381 (1st Dep’t 2007) (“under common-law negligence and Labor Law §200…[t]o prevail on such a claim against an owner or general contractor, a plaintiff must prove that the party so charged exercised direct supervisory control over the manner in which the activity alleged to have cause the injury was performed…STI did not exercise the degree of control over the operations of its subcontractors required to predicate liability for common-law negligence or for a violation of Labor Law §200…STI personnel did not tell Adco or its employees how to perform Adco’s work…”). As such, Hudson has demonstrated as a matter of law that it did not exercise supervisory control over Plaintiff and Plaintiffs Labor Law §200 and common-law negligence claims against Hudson are accordingly dismissed. By contrast, there is a question of fact as to whether MBI or Collins exercised supervisory control over Plaintiffs work. MBI maintains that Collins alone had the authority to supervise Plaintiff and that Collins was not responsible for cleaning the ninth-floor construction site. However, on the night of the alleged injury, Plaintiff states that she was directed by individuals other than her supervisors at Collins to clean cubicles in the construction area. The plaintiff was unfamiliar with the individual who gave this direction but Plaintiff replied “I think so” when asked if the individual worked for “the construction company.” Viewing the facts in the light most favorable to the non-movant, the extent to which MBI and Collins exercised supervisory control over the plaintiff is a material question of fact. Accordingly, MBI’s and Collins’ motions for summary judgment with respect to common law negligence and Labor Law §200 are denied. See, e.g. Oliveri v. City of New York, 146 A.D.3d 522, 522 (1st Dep’t 2017) (affirming denial of summary judgment where question of fact existed as to whether defendant had supervisory control over plaintiff); Urban v. No. 5 Times Square Dev., LLC, 62 A.D.3d 553, 556 (1st Dep’t 2009) (holding supervisory control of a work site is a triable issue of fact that precludes summary judgment); Singh v. 106-108 Bayard Street Corp., 300 A.D.2d 31, 31 (1st Dep’t 2002) (affirming motion court’s denial of summary judgment in light of conflicting testimony regarding supervisory control over plaintiff). Labor Law §240(1) “All contractors and owners and their agents…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.” Labor Law §240(1). To recover, the plaintiff must have been engaged in a covered activity-”the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” See Soto v. J. Crew Inc., 21 N.Y.3d 562, 566 (2013). Defendant MBI argues that Plaintiffs cleaning duties do not qualify as a “cleaning” or any other covered activity of Labor Law §240(1). In Soto v. J. Crew Inc, the Court of Appeals addressed this issue directly: [A]n activity cannot be characterized as “cleaning” under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law §240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. Whether the activity is “cleaning” is an issue for the court to decide after reviewing all of the factors. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other. See 21 N.Y.3d at 568-569. Here, Plaintiff was engaged in routine cleaning that did not require specialized equipment or expertise and generally involves insignificant elevation risks. Plaintiff concedes that “there is no viable §240(1) claim herein” and Plaintiffs §240(1) claims are accordingly dismissed. Labor Law §241(6) “In order to support a claim under section 241(6), however, the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles.” See Misicki v. Caradonna, 12 N.Y.3d 511,515 (2009). The only regulation which can support a Labor Law §241(6) claim that Plaintiff asserts was violated is Industrial Code 12 NYCRR §23-1.7(e)(1): “passageways shall be kept free from…obstructions or conditions which could cause tripping.” See Industrial Code §23-1.7(e)(1). However, Plaintiff in this action alleges that she tripped on Masonite which was laid down as an integral part of the construction project to protect the carpet underneath. “[A]s a general rule, where Masonite is ‘an integral part of the construction, a Labor Law §241(6) claim whether predicated on an alleged violation of Industrial Code 12 NYCRR §23-1.7(e)(1) or (e)(2), should be dismissed.” See Krzyzanowski v. City of New York, 179 A.D.3d 479, 480-481 (1st Dep’t 2020); see also Conlon v. Carnegie Hall Socy., Inc., 159 A.D.3d 655 (1st Dep’t 2018).3 Accordingly, “plaintiffs Labor Law §241(6) claim must fail because of the inadequacy of his allegations regarding the regulations defendants purportedly breached.” See Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 502 (1993).4 Plaintiffs §241(6) claims are accordingly dismissed and Plaintiff’s cross-motion for partial summary judgment is denied. As all claims against Hudson have been dismissed, the court does not reach Hudson’s requests for relief relating to amending pleadings, common law indemnification, contractual indemnification, or breach of contract. Any requests for relief not discussed herein are denied. This constitutes the decision and order of the court. Dated: January 11, 2022
