ADDITIONAL CASES The Fort Miller Co., Inc., Third-Party Plaintiff v. Phoenix Truck Lines, Inc., Third-Party Defendant. Papers considered: Notice of Motion (Miller); Statement of Material Facts; Affirmation of Christine Hanlon, Esq., with annexed exhibits; Counterstatement of Material Facts; Affirmation of Caitlin A. Goetz, Esq.; Memorandum of Law; Affirmation of William J. Greagan, Esq., with annexed exhibits; Affidavit of John P. Coniglio; Memorandum of Law; Reply Affirmation of Christine Hanlon, Esq. Notice of Motion (Plaintiffs); Statement of Material Facts; Affirmation of Peter B. Balouskas, Esq., with annexed exhibits; Memorandum of Law; Notice of Motion (Life, Whiting, Rifenburg); Response to Plaintiffs’ Statement of Material Facts; Affirmation in Opposition of William J. Greagan, Esq., with annexed exhibit; Affidavit of John P. Coniglio, with annexed exhibit; Memorandum of Law; Affirmation in Opposition and Reply of Peter B. Balouskas, Esq.; Reply Memorandum of Law; Notice of Motion (Phoenix); Statement of Material Facts; Affirmation of Brian D. Carr, Esq., with annexed exhibits; Affidavit of Gary Wilmoski; Memorandum of Law; Affirmation in Opposition of Christine Hanlon, Esq.; Reply Affirmation of Brian D. Carr, Esq.; Reply Memorandum of Law. This matter comes before the court on four different summary judgment motions. Defendant and third-party plaintiff The Fort Miller Co., Inc. s/h/a Fort Miller Fab3 Corp. (“Miller”) has moved for summary judgment dismissing the Complaint and all cross-claims against it, and for indemnification from defendants Rifenburg Contracting Corporation (“Rifenburg”) and Phoenix Truck Lines, Inc. (“Phoenix”). Plaintiffs have moved for partial summary judgment on the issue of liability against defendants Rifenburg, Life Covenant Church, Inc. (“Life”) and The Whiting-Turner Contracting Company (“Whiting”). Phoenix has moved for summary judgment dismissing the Third-Party Complaint. Life, Whiting and Rifenburg have moved for summary judgment dismissing Plaintiffs’ Labor Law claims. This case arises from an accident at a construction site owned by Life. Plaintiff Christopher DeFalco was delivering precast concrete and cast-iron components for a storm water drainage system that were supplied by Miller. He was injured when he was struck by storm sewer covers and frames that fell from the flat bed trailer while it was being unloaded by an employee of Rifenburg. The Complaint contains claims under Labor Law §§200, 240 and 241, as well as a claim sounding in negligence and a derivative claim by Mrs. DeFalco. The basic standard to be applied by a court addressing a summary judgment motion is well established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving parties (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]). The Miller Motion. Miller asserts that it not proper defendant on any of Plaintiffs’ Labor Law claims because it was neither an owner, general contractor, nor an agent of either and had no control of the activity that produced the injury at issue (see e.g. Morales v. Federated Dept. Stores, Inc., 5 AD3d 744 [2d Dept 2004]). This argument has not been opposed by any party. Relying primarily on plaintiff Christopher DeFalco’s deposition testimony, Miller focuses its motion on Plaintiffs’ negligence claim. Miller first argues that it owed no duty of care toward Plaintiffs. Miller contracted with Phoenix to deliver flatbed trailer loads of materials manufactured or supplied by Miller to various job sites. As an independent contractor working for Phoenix, Mr. DeFalco used his semi-tractor to pull the flatbed trailers for those deliveries. Miller relies on the rule from Espinal v. Melville Snow Contractors (98 NY2d 136 [2002]) that its contractual relationship with Phoenix would not give rise to duty in favor of Mr. DeFalco, a third party. Miller asserts that none of the three Espinal exceptions to that rule are present here. Miller argues that it did not “launch a force or instrument of harm” and points out that Mr. DeFalco testified in deposition that the trailer he picked up at Miller’s facility was properly loaded in compliance with DOT regulations, and that the load did not shift in transit. There is nothing in the record to indicate that the materials themselves were somehow defective. Miller also argues that delivery and unloading were contractual duties of Phoenix and Rifenburg, so Plaintiff could not detrimentally rely on the continuing performance of a duty by Miller. Finally, there is neither an allegation nor evidence in the record to indicate that Miller agreed to displace any party’s safety-related obligations. Miller also argues that it was not the proximate cause of Mr. DeFalco’s injuries. Miller submits an expert affidavit which points out that Miller had no responsibility after the flatbed was loaded and points to Rifenburg as being responsible for unloading the drainage system components at the job site. Miller’s expert opines that Rifenburg’s improper unloading techniques (failure to use a crane, rocking the trailer with the forklift) were the proximate cause of the accident. Miller’s motion submissions are sufficient to make out its prima facie entitlement to judgment vis-à-vis Plaintiffs. Plaintiffs have not responded to this motion. Although Miller makes no specific argument as to the cross-claims it seeks to have dismissed, a reading of the Answers served in this case shows that the cross-claims directed at Miller seek indemnification and/or contribution from Miller, asserting that Plaintiffs’ injuries were caused in whole or in part by Miller’s culpable conduct. While Miller has made a prima facie showing that it owed no duty to Plaintiffs, that does not end the inquiry where the cross-claims asserted by Miller’s co-defendants are concerned. Both contribution and indemnification can be predicated on a duty owed by Miller to its co-defendants (see e.g. Guerra v. St. Catherine of Sienna, 79 AD3d 808 [2d Dept 2010]). Miller’s co-defendants Whiting and Rifenburg submit an affirmation from their counsel and an expert affidavit disputing Miller’s position. They do not specifically argue that Miller owed any duty to Whiting but they do argue that Miller owed a duty to Rifenburg to carry out its contractual duties without negligence (see e.g. Bandier v. Tim Blenk Tree Care, Inc., 57 AD3d 595 [2d Dept 2008]). They point to deposition testimony by the Rifenburg employee who was unloading the materials, which sharply disputes the factual assertions in Miller’s motion that he violently dropped the precast concrete culvert boxes on the flatbed while attempting to unload them and that his efforts violently rocked the trailer back and forth. They also point to deposition testimony by Miller’s shipping manager admitting that Rifenburg had ordered the culvert boxes to be shipped on 4×4 wood dunnage, but this was was not done. This is argued to have made unloading of the culvert boxes more difficult, contributing to any rocking that may have occurred. Rifenburg also offers an expert affidavit disputing the opinion of Miller’s expert that a crane was required to unload the culvert boxes, also noting that no instruction to use a crane was given by Miller. The expert also asserts that improper dunnage was supplied by Miller, but perhaps more importantly, the expert further asserts that either Miller or its supplier failed to properly secure the stacks of covers and frames by fastening them together with metal banding. The cited deposition testimony shows conflicting factual statements as to Miller’s breach of a duty owed to Rifenburg and resulting causation that are sufficient to set up questions of fact and issues of credibility that are not appropriately resolved on a motion for summary judgment motion (see e.g. Dillenbeck v. Shovelton, 114 AD3d 1125 [3d Dept 2014]; Rosenbaum v. Camps Rov Tov, 285 AD2d 894 [3d Dept 2001]). The disagreement between the views of the expert offered by Rifenburg and that of the expert offered by Miller also precludes summary judgment in Miller’s favor. A court deciding a summary judgment motion should not make credibility determinations when competing expert opinions are offered, unless one opinion is either conclusory (Rockefeller v. Albany Welding Supply Co., Inc., 3 AD3d 753 [3d Dept 2004]), speculative (Palmer v. Barnes & Noble Booksellers, Inc., 34 AD3d 1287 [4th Dept 2006]) or so lacking in factual or scientific foundation as to be utterly devoid of merit (Elsawi v. Saratoga Springs City School Dist., 141 AD3d 921 [3d Dept 2016]). The expert affidavits offered here do not suffer from any of those infirmities, so that a credibility determination by the finder of fact will be necessary. Miller’s motion seeking contractual and common-law indemnification from Rifenburg and Phoenix is moot. Because Miller will avoid liability under the Labor Law and has shown that it owed no duty to Plaintiffs, its only exposure will be on Rifenburg’s cross-claim for contribution or indemnification, where Miller’s liability will be limited to the extent of its own contribution to Plaintiff’s injuries (Guerra, 79 AD3d at 809). In sum, Miller has made its prima facie showing for judgment dismissing Plaintiffs claims against it and Plaintiffs have not responded, so Miller’s motion must be granted to the extent of dismissing Plaintiffs’ claims. Miller’s motion to dismiss all cross-claims must be denied insofar as Rifenburg is concerned, as Miller owed Rifenburg a duty to perform its contractual duti without negligence and Rifenburg has raised questions of fact as to whether Miller contributed to Mr. DeFalco’s injuries. Miller’s motion to dismiss cross-claims must be granted as to Life and Whiting, which have not shown any duty owed to them by Miller. Miller’s motion seeking summary judgment granting indemnification from Rifenburg and Phoenix must be denied as moot. The Motions by Plaintiffs, Life, Whiting and Rifenburg. Plaintiffs seek summary judgment as to liability on their claims under Labor Law §240(1) against Life, Whiting and Rifenburg. These defendants have opposed Plaintiffs’ motion and have brought their own motion for summary judgment dismissing both of Plaintiffs’ Labor Law claims. The parties have offered substantial argument in support of their respective positions, but the decision on both motions comes down to a classic battle of experts. Plaintiffs cite case authority for their argument that Christopher DeFalco was engaged in delivery of materials to an active construction site and was hit by a falling object, making Labor Law §240(1) applicable (e.g. Runner v. New York Stock Exchange, Inc., 13 NY3d 599 [2009]; Hyatt v. Young, 117 AD3d 1420 [4th Dept 2014]). Plaintiffs offer the expert affidavit of Randall Hajeck, who opines that defendants Life, Whiting and Rifenburg all violated Labor Law §240(1) by failing to utilize or to provide the proper “hoists, stays, slings, hangers, blocks, pulleys ” for the job and/or attempting to unload the precast concrete culvert boxes without using the appropriate lifting equipment, which was also a violation of industry safety guidelines. Hajeck also opines that the statutory violation was the proximate cause of Mr. DeFalco’s injuries, in that the improper unloading method rocked the flatbed trailer back and forth, which caused the manhole covers and frames to be dislodged from the trailer and fall on him. The three defendants respond by arguing that §240(1) did not apply to Mr. DeFalco, that the Labor Law was not violated, and that DeFalco was the sole proximate cause of his own injuries. Defendants submit case law to support their argument (e.g., Cicchetti v. Tower Windsor Terrace, LLC, 128 AD3d 1262 [3d Dept 2015] [application of Labor Law §240(1)]; Eddy v. John Hummel Custom Builders, Inc., 147 AD3d 16 [2d Dept 2016] [no Labor Law violation for ordinary construction dangers]; Blake v. Neighborhood Housing Services of NYC, Inc., 1 NY3d 280 [2003] [proximate cause]). Defendants offer the expert affidavit of John P. Coniglio who opines, based upon the language of §240, that because Mr. DeFalco was a truck driver, rather than a construction worker, the statute is simply inapplicable. Mr. Coniglio also opines that, because Mr. DeFalco removed two of the three straps securing the stack of manhole covers and frames when unloading began, he was the sole proximate cause of his injuries. The defense uses the same arguments and submissions to support their motion for summary judgment dismissing Plaintiffs’ Labor Law claims. Plaintiffs are correct that Labor Law §240(1) applies to this case. The Hyatt opinion cited by Plaintiffs, for example, refutes the defense argument that it does not. Defendants’ argument that Mr. DeFalco was merely exposed to the ordinary dangers associated with construction sites does not really apply here “on all fours.” Defendants rely primarily on the Eddy v. John Hummel Custom Builders case cited above. But as the Eddy opinion points out, “More fundamentally, however, the plaintiff in this case was not engaged in the task of unloading the truck at the time of the accident” (Id. at 22). Indeed, the Eddy plaintiff’s decision to ride on top of the metal grate that ultimately injured him when he and the grate fell from the truck was held to be the sole proximate cause of his injuries. In the end, the question of proximate cause decides both motions here. Generally, proximate cause is a question for the finder of fact unless only one inference can be made from the established facts of the case (see e.g. Danton v. Van Valkenburg, 13 AD3d 931 [3d Dept 2004]). This principle of negligence law is applicable to Labor Law claims (see e.g. O’Keefe v. Wohl, 184 AD3d 1046 [3d Dept 2020]). The two experts in this case disagree as to what constitutes the proximate cause of Mr. DeFalco’s injuries. Plaintiffs’ expert opines that improper unloading procedure was the proximate cause, while Defendants’ expert opines that DeFalco’s own actions in partially unstrapping the load was the sole proximate cause. As discussed above, unless an expert’s opinion is conclusory, speculative, or devoid of merit, a court deciding a summary judgment motion should not make credibility determinations when competing expert opinions are offered. While the expert affidavits offered here are of varying lengths with varying amounts of detail, none of them are conclusory, speculative, or devoid of merit, so that a credibility determination by the finder of fact will be necessary. Both summary judgment motions must be denied. The Motion by Phoenix. Phoenix seeks summary judgment dismissing the Third-Party Complaint. The Third-Party Complaint contains six causes of action. Five of these seek indemnification or contribution against Phoenix under various theories. The sixth sounds in breach of contract for Phoenix’s failure to name Miller as an additional insured on its liability policy. As discussed above, however, Miller’s liability in this case will be limited to Rifenburg’s cross-claim for indemnification or contribution, which renders the Third-Party complaint moot. Therefore, the Phoenix motion must be granted. The parties’ remaining contentions have been considered, but do not alter the outcome of these motions. Therefore, in consideration of the foregoing, it is hereby ORDERED, that the motion by defendant and third-party plaintiff The Fort Miller Co., Inc. s/h/a Fort Miller Fab3 Corp., seeking summary judgment dismissing the Complaint as against it is granted, and the Complaint is hereby dismissed as against defendant Miller; and it is further ORDERED, that the motion by defendant Miller seeking summary judgment dismissing all cross-claims asserted against it is denied as to those cross-claims asserted against Miller by defendant Rifenburg Contracting Corporation, and granted in all other respects so that all cross-claims asserted against Miller by defendants Life Covenant Church, Inc. and The Whiting-Turner Contracting Company are hereby dismissed; and it is further ORDERED, that the motion by defendant Miller seeking summary judgment granting it indemnification from defendant Rifenburg and third-party defendant Phoenix Truck Lines, Inc. is denied as moot; and it is further ORDERED, that the motion by Plaintiffs seeking summary judgment on the issue of liability against defendants Life, Whiting and Rifenburg is denied; and it is further ORDERED, that the motion by defendants Life, Whiting and Rifenburg seeking summary judgment dismissing Plaintiffs’ Labor Law claims against them is denied; and it is further ORDERED, that the motion by third-party defendant Phoenix seeking summary judgment dismissing the Third-Party Complaint is granted and the Third-Party Complaint is hereby dismissed. Dated: December 6, 2021
