The following papers read on this motion: NYSCEF Doc Nos Notice of Motion/Order to Show Cause/Petition/Affidavits (Affirmations) and Exhibits 46-68, 70-92, 92-114 Cross-motions Affidavits (Affirmations) and Exhibits Answering Affidavit (Affirmation) 118, 120-129 Reply Affidavit (Affirmation) 131, 133, 135 Supplemental Affidavit (Affirmation) Decision and Order Plaintiff alleges he was injured while delivering sheetrock to a construction site when temporary flooring collapsed causing the sheetrock to fall on top of him. Plaintiff and another worker were delivering sheetrock into a construction site. Plaintiff alleges that ten sheets of sheetrock were loaded on an A-frame dolly but not secured to the dolly. There is testimony that each panel was 12 feet by 4 feet and weighed approximately 45 pounds. Plaintiff alleges as he entered the foyer of the house, the temporary plywood flooring broke causing the A-frame dolly to tip and the sheetrock panels to fall on him. Plaintiff alleges two causes of the accident. First, that the temporary plywood flooring was insufficient to support the weight of the sheetrock and dolly, and second, that the sheetrock was not secured to the A-frame dolly. Defendant KAMCO SUPPLY CORP (“KAMCO”), the company that supplied and delivered the sheetrock, Defendant D DUKES DEVELOPMENT CORP. (“DUKES”), a drywall subcontractor that ordered the sheetrock from KAMCO, and Defendant LMW GROUP INC (“LMW”), the general contractor, all move to dismiss Plaintiff’s complaint. Defendant LMW also moves for summary judgment on its cross claims against Defendant KAMCO and Defendant DUKES for common law indemnification. KAMCO’s motion Defendant KAMCO argues both that it is not a proper Labor Law defendant because it was not a contractor on the job, and also that Plaintiff is not a proper Labor Law plaintiff because he was not engaged in construction activity, but only delivering sheetrock to the site. However, a worker who delivers material to an active construction site for ongoing construction is covered by the Labor Law (White v. Village of Port Chester, 92 AD3d 872 [2d Dept 2012]; Serrano v. TED General Contractor, 157 AD3d 474 [1st Dept 2018]; Simms v. Elm Ridge Assn, 259 AD2d 538 [2d Dept 1999]). Here, it is undisputed that the sheetrock was being delivered to an active construction site, not stockpiled for future use (see Kusayev v. Sussex Apts. Assoc., LLC, 163 AD3d 943, 944 [2d Dept 2018]). It is also undisputed that Defendant KAMCO’s only involvement was supplying the sheetrock ordered by Defendant DUKES and delivering it to the construction site. Defendant KAMCO argues that a worker delivering material to an active construction site is not covered by the Labor Law if the company who he was working for was not involved in the construction, citing Mordkofsky v. VCV Development Corp., 76 NY2d 573 [1990], and Valinoti v. Sandvik Seamco Inc., 246 AD2d 344 [1st Dept 1998]. Defendant KAMCO’s reliance on these cases is misplaced. The Court of Appeals decision in Mordkofsky did not involve a worker employed to deliver construction material to an active construction site. It involved a contract vendee of a building who was on site to inspect the progress of the work (id.). The contract vendee was not employed by anyone to do any work at the site. The decision in Mordkofsky does not address the issue of whether a worker delivering construction material while working for a company that was not involved in the construction is a proper Labor Law Plaintiff. The decision in Valinoti involved a UPS employee who was not making a delivery to a construction site, but who was reporting to work at the UPS building where construction work happened to be ongoing. As Plaintiff herein was delivering construction material to an active construction site, the holdings in White and Serrano are more applicable, even though Defendant KAMCO was not engaged in construction activity. Thus, Plaintiff is a worker entitled to the protections of the Labor Law. Defendant KAMCO also argues that it is not a proper Labor Law Defendant because it was not hired to do any construction work and had no contract with either the owner or general contractor. However, Plaintiff was working under Defendant KAMCO’s supervision in the delivery of construction material, which as discussed above, has been held to be work covered by the Labor Law, unlike the situations in Mordkofsky and Valinoti. To hold a subcontractor liable as a statutory agent for violations of Labor Law §240(1) or §241(6), there must be a showing that the party “had the authority to supervise and control the work giving rise to these duties” (Torres v. LPE Land Dev. & Const., Inc., 54 AD3d 668, 669 [2d Dept 2008]; Kehoe v. Segal, 272 AD2d 583, 584 [2000]; Russin v. Louis N. Picciano & Son, 54 NY2d 311 [1981]). Thus, the relevant question is whether Defendant KAMCO supervised or controlled Plaintiff’s work while he was delivering the sheetrock into the construction site. While Defendant KAMCO was not responsible for the condition of the temporary plywood floor, it was responsible for the sheetrock not being secured to the A-frame dolly, which Plaintiff claims was a cause of the accident. Even though Plaintiff was not an employee of Defendant KAMCO, he was working for KAMCO at the time. He had been performing work for Defendant KAMCO for about four months and reported to KAMCO’s office daily. He was sent to the site by Defendant KAMCO, with KAMCO workers, and was being directed by KAMCO workers while delivering the sheetrock. As Defendant KAMCO employees supervised Plaintiff as he was delivering sheetwork on the worksite, KAMCO was acting as statutory agent of the owner in supervising how the sheetrock was delivered and deciding whether it was secured to the dolly. Turning specifically to Plaintiff’s claim pursuant to §240(1), Defendants argue that sheetrock falling off a dolly on the same level as Plaintiff is not an elevation related risk. However, there are relevant questions of fact as to whether the weight of the sheetrock panels together with the height from which they fell would generate sufficient force to be a gravity related danger and whether the sheetrock panels should have been secured to the A-frame dolly (Marrero v. 2075 Holding Co LLC, 106 AD3d 408 [1st Dept 2013]; McCallister v. 200 Park LP, 92 AD3D 927 [2d Dept 2012]). Plaintiff alleges that there were 10 sheets of 12-foot sheetrock each weighing 45 pounds that fell on him, and that it was necessary for other workers to pull the sheetrock off of him. Turning to Plaintiff’s claims pursuant to Labor Law §241(6), Defendant KAMCO is entitled to summary judgment dismissing those claims. Plaintiff cites Industrial Code sections 12 NYCRR §§23-1.7(e)(1) and 23- 2.1(a)(2) in support of his §241(6) claims. Section 23-1.7(e)(1) applies to tripping hazards and is not applicable to the situation alleged by Plaintiff. Section 23-2.1(a)(2) provides that material shall not be stored upon any floor in such quantity or of such weight as to exceed the safe carrying capacity of such floor and shall not be placed or stored so close to any edge of a floor as to endanger any person beneath such edge. Here, the material was being transported over, not stored on the plywood flooring that collapsed, so the delivery did not constitute a violation of §23-2.1(a)(2). Plaintiff cites no section of the Industrial Code relevant to securing the sheetrock to an A-frame dolly. In terms of Plaintiff’s Labor Law §200 claim, he alleges both a negligent means and method, as well as a dangerous condition. Plaintiff alleges the accident was caused both by the failure to secure the sheetrock to the dolly and by the temporary plywood flooring that was too weak. As a supervisor of Plaintiff’s work, Defendant KAMCO may be liable under section 200 and common law negligence, if a trier of fact concludes that it was negligent not to secure the sheetrock panels to the dolly. DUKES motion Defendant DUKES motion should be granted as it was a subcontractor that did not supervise or control Plaintiff’s work. While it did order the sheetrock from Defendant KAMCO, it had no role in how the sheetrock was loaded on the dolly or delivered. The fact that DUKES told KAMCO to deliver the sheetrock to the first floor of the building, by itself, does not evidence that it supervised or controlled the manner in which the sheetrock was delivered. Further, Defendant DUKES had no role in creating or maintaining the temporary plywood flooring which failed. LMW’s motion to dismiss For the reasons discussed above, Defendant LMW, the general contractor, is not entitled to summary judgment dismissing Plaintiff’s claim pursuant to §240(1), but is entitled to summary judgment dismissing Plaintiff’s §241(6) claim. As to Plaintiff §200 claim, Defendant LMW did not supervise Plaintiff’s work, so it is not liable for the means or methods used; in this case the failure to secure the sheetrock. However, there is a question of fact as to whether the plywood flooring that was placed at the entrance foyer was a dangerous condition. Timothy Lyons of Defendant LMW testified at his deposition that LMW installed the plywood as temporary flooring placed over a concrete bed on which a marble floor was eventually to be installed. He also testified that the ¾” plywood was attached to the tops of the floor joists above the concrete bed, although it is unclear from the record how high over the concrete bed the plywood was. There is a question of fact whether the plywood was strong enough to serve as temporary flooring on a construction site where the movement of construction material over it was foreseeable. As such, there remains a question whether the temporary plywood flooring, created by Defendant LMW, constituted an unsafe condition. LMW’s motion for Summary Judgement on its Cross Claims Defendant LMW also seeks summary judgment on its cross claims against Defendants DUKES and KAMCO for common law indemnification. Summary judgment for common law indemnification against Defendant DUKES must be denied because, as discussed above, Defendant DUKES only involvement in the delivery of the sheetrock was to direct that it be delivered to the first floor of the building. Without more, there is not sufficient evidence that Defendant DUKES supervised or controlled Plaintiff’s work. Further, it was Defendant LMW not DUKES that installed the temporary plywood flooring. Summary judgment for common law indemnification against Defendant KAMCO must be denied because it has not yet been determined whether KAMCO was negligent. Lastly, although Defendants KAMCO and LMW sought to have the cross claims against them dismissed, the basis to dismiss the cross claims was not addressed in any of the moving papers. WHEREFORE, it is hereby ORDERED that that portion of Defendant KAMCO SUPPLY CORP’s motion to dismiss Plaintiff’s claims pursuant to Labor Law §240(1) is denied; and it is further, ORDERED that that portion of Defendant KAMCO SUPPLY CORP’s motion to dismiss Plaintiff’s claims pursuant to Labor Law §241(6) is granted; and it is further, ORDERED that that portion of Defendant KAMCO SUPPLY CORP’s motion to dismiss Plaintiff’s claims pursuant to Labor Law §200 and common law negligence is denied; and it is further, ORDERED that that portion of Defendant KAMCO SUPPLY CORP’s motion to dismiss the cross claims against it is denied; and it is further, ORDERED that Defendant D DUKES DEVELOPMENT CORP’s motion to dismiss Plaintiff’s claims and all cross claims as against it is granted; and it is further, ORDERED that that portion of Defendant LMW GROUP’s motion to dismiss Plaintiff’s claims pursuant to Labor Law §240(1) is denied; and it is further, ORDERED that that portion of Defendant LMW GROUP’s motion to dismiss Plaintiff’s claims pursuant to Labor Law §241(6) is granted; and it is further, ORDERED that that portion of Defendant LMW GROUP’s motion to dismiss Plaintiff’s claims pursuant to Labor Law §200 and common law negligence is denied; and it is further, ORDERED that that portion of Defendant LMW GROUP’s motion to dismiss the cross claims against it is denied; and it is further ORDERED, that the portion of Defendant LMW GROUP’s motion for summary judgment on its cross claims for common indemnification against Defendant KAMCO SUPPLY CORP and Defendant D DUKES DEVELOPMENT CORP is denied. This constitutes the decision and order of the Court. Dated: December 1, 2023
