ADDITIONAL CASES Consolidated Edison Inc., Plaintiff v. Triumph Construction Corp., Safeway Construction Enterprises, Inc., Citywide Paving Inc. Defendant; Third-Party 595853/2018 The following e-filed documents, listed by NYSCEF document number (Motion 004) 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 286, 287, 288, 289, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 306, 307, 321 were read on this motion to/for JUDGMENT — SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 006) 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 272, 273, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 290, 303, 304, 305, 320 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. The following e-filed documents, listed by NYSCEF document number (Motion 007) 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 274, 275, 319 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. The following e-filed documents, listed by NYSCEF document number (Motion 009) 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 322, 323, 324, 325, 326, 327 were read on this motion to/for AMEND CAPTION/PLEADINGS. DECISION + ORDER ON MOTION Upon the foregoing documents, defendant Consolidated Edison (“Con Edison”) moves, pursuant to CPLR §3212, for summary judgment to dismiss all claims and cross-claims asserted against it, and defendant Turner Construction Company (“Turner”) cross-claims for an order compelling Con Edison to produce an additional witness for deposition (Motion Seq. 004). Turner also moves for summary judgment to dismiss all claims and cross-claims against it, and Plaintiff cross-moves for summary judgment against Turner and/or defendant Commodore Construction Corp. (“Commodore”) on the issue of liability under Labor Law §§240, 241(6), 200, and common law negligence (Motion Seq. 006). Commodore separately moves for summary judgment to dismiss Turner’s third-party claims for common law indemnification and contribution (Motion Seq. 007). Finally, plaintiff John Macropoulos (“Plaintiff”) moves for leave to file an amended complaint (Motion Seq. 009). The motions are consolidated for decision herein. For the reasons cited herein, Motion Seq. 004 is granted, and the cross-motion is denied. Motion Seq. 006 and the cross-motion thereto are both granted in part. Motion seqs. 007 and 009 are granted. RELEVANT BACKGROUND In this personal injury action, Plaintiff seeks damages for a work-related injury that occurred on July 25, 2015, at a worksite located at the intersection of Maiden Lane and William Street, near the New York Federal Reserve Bank (“FRB”) located at 33 Liberty Street, New York, New York. At all relevant times, Turner acted as general contractor at the worksite, which included excavation and repair of certain electrical and data conduits that provided power and data to the guard booth from the FRB (NYSCEF Doc No. 193, Nunez 8/19/22 deposition tr at 12). Turner subcontracted with Commodore to excavate the conduits (id. at 14). Plaintiff was employed by Commodore as a laborer at the worksite (NYSCEF Doc No. 187, plaintiff 8/29/18 deposition tr at 22). On July 25, 2015, Plaintiff was engaged in excavating the electrical and data conduits when he was electrocuted by additional energized conduits that were situated underneath the conduits he was excavating (id. at 38). Plaintiff was deposed on August 29, 2018 regarding the incident and again on May 31, 2022 regarding his injuries (NYSCEF Doc Nos. 187, 188). Plaintiff testified that on the date of the incident, he attended a morning meeting of Commodore employees at the worksite led by a Commodore supervisor, John Vlahopoulos, where there was a discussion of “safety equipment, goggles, boots, stay hydrated” (NYSCEF Doc Nos. 187, plaintiff 8/29/18 deposition tr at 29-30). Following, or at, the meeting Commodore provided him with a jackhammer and protective equipment including gloves, hearing protection, and eye protection (id. at 30-31). There was also discussion at the meeting regarding “excavating and how deep to go,” which was “maybe two feet” deep above where the damaged conduits were located (id. at 34-35). Plaintiff was provided with blueprints that showcased the conduits (id.). He could not recall the number of conduits that were on the blueprint but testified “I think it was two conduits” (id.). Plaintiff was then taken to the excavation site, which was a paved portion of the road (id. at 36). Plaintiff testified that before he broke ground, there were only traffic markings on the asphalt and no Code 753 markings (id. at 130-131) or other mark-outs (NYSCEF Doc No. 188, plaintiff 5/31/22 deposition tr at 141).1 Plaintiff testified that his understanding regarding mark-outs is that “if there is work to be done in an area digging is involved, a company will come in and mark-out where the utilities are running down so you don’t hit them” (id. at 142). Asked to explain how the accident occurred, Plaintiff testified as follows: I exposed the conduits. I called over to the super, the foreman who called Turner’s foreman, I guess he was. They took a look, told me I had to clean it up a little more. I continued to clean up the site. I had found some conduits that were broken. And I brought it to their attention. They told me I had to dig underneath the conduits and remove the concrete. I didn’t want to dig any further with the jackhammer because I didn’t feel it was safe. So they supplied me with a chipping hammer and told me to keep digging and do a better job of it. The next thing I remember was a fireball. (NYSCEF Doc Nos. 187, plaintiff 8/29/18 deposition tr at 38). Plaintiff testified that the individual he believed to be Turner’s foreman was named “Victor,” who was accompanied by Turner’s electrician, whose name Plaintiff did not recall (id. at 38-39). Plaintiff’s supervisor introduced both individuals to him (id. at 39). When questioned “[w]ho exactly told you that you had to sort of dig under the conduits and remove the concrete,” Plaintiff responded “Turner’s foreman and also my supervisor. He stated that Turner was running the show” (id. at 39). Plaintiff further testified that he believed it was unsafe to continue drilling with the jackhammer because he “found another set of conduits close to the ones we were excavating. And they were rusted. I believe one was broken” (id. at 39-40). Plaintiff pointed these out “[t]o both my supervisor, foreman, to Turner, and to another Commodore employee named Ray Speckman” (id. at 40). Commodore then provided him with the chipping hammer, which he used for about 20 minutes before the accident (id. at 41). Plaintiff then heard an explosion, and the next thing he remembers was being in an ambulance (id. at 42). Plaintiff also testified that just prior to the accident, he “had spoken to my super and Turner’s guy. I told them that I did not want to continue with the jackhammer. I felt it wasn’t safe” (id. at 61). Plaintiff testified that Victor came to talk to him directly regarding the conduits after they were exposed (id. at 88, ln 4-6). Finally, Plaintiff testified that no one told him prior to working at the site that there was electricity running through the conduits (id. at 85), and that neither his foreman or anyone from Turner or Commodore told him to stop working at any point before the accident occurred (NYSCEF Doc No. 188, Plaintiff 5/31/22 deposition tr at 155). Plaintiff was working alongside “about ten” Commodore employees on the date of the incident (NYSCEF Doc Nos. 187, plaintiff 8/29/18 deposition tr at 37), including Victor G. Starostiak (“Starostiak”). Starostiak was deposed on November 18, 2022 (NSYCEF Doc No. 194, Starostiak deposition tr). Starostiak was also employed by Commodore as a laborer on the date of the accident (id. at 9). He was tasked with cleaning debris from the excavation and assisting anyone who needed help at the time, such as if they needed a break he would “jump in and chip” (id. at 16). At some point during the day, he began working alongside Plaintiff (id. at 18). He testified that Turner initially came up to them and told them to expose the conduits, and after they did so, “[w]e waited and then the guy from Turner came over and asked can we go a little deeper” (id. at 19). After Plaintiff began using the chipping gun, Starostiak saw “a very large spark arch that occurred in the hole with him,” and Starostiak shoveled dirt over the fire to put it out (id. at 22). When asked, “[p]rior to the incident occurring did you ever hear of anyone from Turner tell anyone from Commodore to stop the work,” Starostiak responded “Never” and “No, never” (id. at 24). A deposition of Victor Nunez (“Nunez”) was taken over two days on August 19, 2022 and September 15, 2022 (NYSCEF Doc Nos. 133-134, Nunez deposition tr). Nunez testified that he is currently employed as a business development manager for Turner and was employed by Turner as an assistant superintendent on July 25, 2015 (id. at 10). In connection with the FRB job, his responsibilities included coordination of the project, meeting with FRB to provide progress updates, coordinating internally at Turner regarding costs, and he was “in the field coordinating the work amongst the multiple trade partners as well as with the project managers of the companies” (id. at 11). Regarding the conduit repair work at the FRB, he testified as follows: From what I can recall, a few years prior to our project coming underway Con Edison was doing some street work at the street intersection and they actually cut through, for whatever reason, some of the conduit that fed into the Federal Reserve Bank, essentially two conduits that linked power and data to the guard booth from the Federal Reserve Bank. The Federal Reserve Bank needed repairs done to that because it was critical to their operations to make sure that any deliveries were checked out and they had a working fully functional guard booth. (id. at 12). Nunez was on the worksite on July 25, 2015 (id.). His responsibilities included coordinating with the FRB and the field foreman of the trade partners, including Commodore regarding excavation work and with an electrical coordinator whose name he could not recall, and to “coordinate the work and the sequence of the work, and make sure that we have the proper street closures that day before we can effectively start the work as well” (id. at 14). The goal of the day on July 25, 2015 was to do street closures and begin excavation work to expose conduits that needed repair at two locations at the worksite (id. at 15-16; NYSCEF Doc No. 134, Nunez deposition tr at 8). Nunez testified that, prior to beginning work on the project, likely in June 2015, Turner had a meeting with representatives from Con Edison and the Department of Transportation to discuss road closures and permits needed for the project (NYSCEF Doc No. 134, Nunez deposition tr at 93, 97). Tony Garito from Commodore and an expeditor for Commodore were also present at the meeting (id. at 109). Nunez testified that at the meeting, Turner was told that two Con Edison conduits were “close” to the FRB conduits, but that “we weren’t, well we shouldn’t have expected them to be right on top of each other” (id. at 106-107). Nunez further testified that “[w]e knew it was live before that and it was asked at that meeting if they could be turned of[f]” (id. at 109). The response to this inquiry was “ No, they could not turn them off” (id. at 109). Nunez later clarified that Turner asked FRB if the lines could be de-energized, and FRB, in turn, asked Con Edison (id. at 137). At the deposition, Nunez was shown a copy of a meeting sign-in dated June 30, 2015 and bates stamped 324 (id. at 123-124). The sign-in sheet shows individuals from the DOT, Turner, FRB, and Commodore signed into the meeting (id. at 125). No individuals from Con Edison are listed on the sign-in sheet, but a bullet point in the meeting minutes says “Turner Construction to start 7/25/15 pending Con Ed meeting” (id.). Nunez testified that he believed “there were still prior Con Ed meetings” (id. at 125-126). Regarding the date of the incident, Nunez testified that he did not recall if Commodore or Plaintiff voiced concerns about what was located after they began digging in a particular location, did not recall whether he or one of Turner’s trade partners wanted them to continue to expose the conduits further, and did not recall one of Turner’s trade partners giving Plaintiff a chipping gun to expose the conduits further (id. at 19). He testified that he also did not recall requesting that Commodore or Plaintiff expose the conduits to a deeper length after inspecting it (id. at 20). Rather, Nunez testified that after he inspected the exposed conduit and identified another conduit underneath it, he “essentially said that the work was done for the date because it looked like everything was really close to each other in terms of conduits” (id. at 25), and that he “would have to go and talk to the project manager of Commodore, along with other trade partners to come up with a plan how we were going to do the work” (id. at 25-26). He testified that, at the time of the explosion, he was in front of the loading dock, approximately fifty (50) feet from the site of the incident, and heard, but did not see, the incident occur (id. at 20-22). PROCEDURAL HISTORY Plaintiff timely filed a notice of claim and testified at a 50-H hearing on May 5, 2016 (NYSCEF Doc No. 145). On August 10, 2016, Plaintiff commenced this action by filing a summons and complaint in Supreme Court, Queens County, which interposes causes of action against the City of New York (the “City”), the Department of Transportation (“DOT”), New York City Department of Environmental Protection, Con Edison, and Turner (NYSCEF Doc No. 13). Con Edison and Turner filed timely answers, and the City filed an answer on behalf of itself and on behalf of the New York City Department of Transportation and the New York City Department of Environmental Protection. The City, Con Edison, and Turner all interpose cross-claims against each other in their respective answers. On December 19, 2016, Turner filed a Third-Party Complaint against Commodore. Commodore served an answer to Turner’s Third-Party Complaint on February 16, 2017. On January 4, 2017, the City moved the Supreme Court, Queens County for a change of venue to New York County (NYSCEF Doc No. 126) The motion was granted by an order dated February 28, 2017, and the matter was transferred to New York County (NYSCEF Doc No. 127). On July 20, 2018, Plaintiff commenced a second action for the same injury by filing a summons and complaint against Triumph Construction Corp. (“Triumph”), bearing Supreme Court, New York County Index No. 156777/2018. Triumph filed its answer to the complaint on October 16, 2018. The two actions were later consolidated under Index No. 451904/2017 by a so-ordered stipulation dated October 21, 2019 (NYSCEF Doc No. 50). On October 23, 2018, Con Edison filed a second third-party complaint, which asserts causes of action for contractual indemnification and breach of contract against Triumph, Safeway Construction Enterprises, Inc. (“Safeway”), and Citywide Paving, Inc. (“Citywide”), and asserts a cause of action for negligence against Safeway (NYSCEF Doc No. 9). Triumph filed an answer to the second third-party complaint with cross-complaint against Turner, Commodore, Safeway, and Citywide on December 12, 2018 (NYSCEF Doc No. 20). Citywide filed an answer with cross-claim against Triumph and Safeway on December 17, 2018 (NYSCEF Doc No. 24). Safeway filed an answer with cross-claim against the City, the New York City Department of Environmental Protection, Con Edison, Turner, Commodore, Triumph, and Citywide on January 18, 2019 (NYSCEF Doc No. 25). Safeway filed an answer to Safeway’s cross-claim on February 5, 2019 (NYSCEF Doc No. 28), Triumph filed an answer on February 8, 2019 (NYSCEF Doc No. 30), Commodore filed an answer on October 21, 2019 (NYSCEF Doc No. 47), and Triumph filed an answer to Turner’s cross-claim on October 16, 2020 (NYSCEF Doc No. 61). Plaintiff filed the note of issue on April 20, 2023 (NYSCEF Doc No. 112). On July 29, 2023, Commodore moved, by order to show cause, to compel Con Edison to produce Benjamin Aguanno (“Aguanno”) or another individual who was present at the pre-work meeting where Turner purportedly asked that Con Edison de-energize the conduits at the worksite for a deposition (NYSCEF Doc No. 117). On July 31, 2023, the court declined to sign the order to show cause, noting that Defendants failed to demonstrate a legally sufficient basis to vacate the note of issue or for a further deposition of Con Edison (NYSCEF Doc No. 138). In so finding, the court noted that the first Con Edison deposition was completed ten months before the note of issue was filed, and that no unusual or unanticipated circumstances developed after the note of issue was filed to warrant vacatur of the note of issue (id.). Commodore filed an appeal of the court’s order, which was dismissed by an order dated May 7, 2024 (NYSCEF Doc No. 333). On August 17, 2023, Triumph moved for summary judgment to dismiss the complaint and all cross-claims against it (NYSCEF Doc No. 154). Citywide similarly moved for summary judgment to dismiss the complaint and all cross-claims against it on August 18, 2023 (NYSCEF Doc No. 225). Both motions were unopposed and were granted by two orders of this court dated March 19, 2024, and the complaint and all cross-claims were dismissed as against Triumph and Citywide (NYSCEF Doc Nos. 328, 329). Con Edison now moves for summary judgment to dismiss all claims and cross-claims against it (Motion Seq. 004). Turner cross-moves against Con Edison’s motion for an order compelling Con Edison to produce Aguanno for a deposition, which Con Edison opposes. Separately, Turner moves for summary judgment to dismiss all claims and cross-claims against it, and Plaintiff cross-moves for summary judgment in Plaintiff’s favor against Turner and/or Commodore on the issue of liability under Labor Law §§200 and 241 (6) (Motion Seq. 006). Commodore also moves for summary judgment to dismiss all claims and cross-claims against it (Motion Seq. 007). Finally, Plaintiff moves for leave to amend the complaint to specifically plead causes of action based on Labor Law §§200 and 241 (6) (Motion Seq. 009). DISCUSSION A motion for summary judgment “shall be granted if, upon all the papers and proofs submitted, the cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party” (CPLR §3212[b]). “The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law” (Dallas-Stephenson v. Waisman, 39 AD3d 303, 306 [1st Dept 2007]). The movant’s burden is “heavy,” and “on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” (William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475 [2013][internal quotation marks and citation omitted]). Upon proffer of evidence establishing a prima facie case by the movant, the party opposing a motion for summary judgment bears the burden of producing evidentiary proof in admissible form sufficient to require a trial of material questions of fact (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Ruiz v. Griffin, 71 AD3d 1112, 1115 [2d Dept 2010][internal quotation marks and citation omitted]). A. Con Edison’s Motion Con Edison moves for summary judgment to dismiss all direct claims, cross-claims, and any other claims of any nature asserted against it in this matter (NYSCEF Doc No. 141, notice of motion). In support of its motion, Con Edison submits, inter alia, a copy of Plaintiff’s Bill of Particulars to Con Edison (NYSCEF Doc No. 144), a transcript of Plaintiff’s 50-h hearing and deposition, with exhibits thereto (NYSCEF Doc Nos. 145-147), a transcript of the deposition of Vickie Cheung (“Cheung”), Con Edison record searcher and related records (NYSCEF Doc Nos. 132, 148), a transcript of the deposition of Victor Nunez for Turner (NYSCEF Doc No. 133), a transcript of the deposition of Victor G. Starostiak for Commodore (NYSCEF Doc No. 150), a transcript of the deposition of Triumph Construction Corp. (NYSCEF Doc No. 151), Affidavit of Benjamin Aguanno (NYSCEF Doc No. 152), and Affidavit of Pedro Corredor (NYSCEF Doc No. 153). At a deposition of Cheung taken on June 21, 2022, Cheung testified that her title at Con Edison is “Specialist” and her position entails searching records and testifying regarding the results at depositions (NYSCEF Doc No. 132). Cheung testified that a Con Edison employee searched for records pertaining to the intersection of Maiden Lane and William Street in Manhattan for the search dates of July 25, 2013 to July 25, 2015 (id. at 8). In the search, Con Edison found seven opening tickets, one payment order, sixteen DOT permits, one corrective action request, and three emergency control system tickets in the search (id. at 9). Cheung testified that these records indicate that Triumph, working as Con Edison’s contractor, damaged FRB communication cables in the vicinity of the location where Plaintiff was injured and completed work in the area in March and May 2014 (id. at 21-24, 29-30, 32-33). There were no records of work by Con Edison or its contractor performing work at the location on the date of Plaintiff’s injury (id.). Con Edison was notified of plaintiff’s alleged incident after the Fire Department contacted Con Edison (id. at 12-15). Con Edison also submits affidavits of Aguanno and Pegro Corredor (“Corredor”) in support of its motion (NYSCEF Doc No. 152). Aguanno attests that he is employed as a Section Manager in Con Edison’s Customer Engineering Department under Electric Operations (id. 1). At the request of Con Edison’s Legal Services Department, he reviewed the sign-in sheet for a July 1, 2015 meeting, which is annexed to the deposition (id. 2, exhibit 1). The sign-in sheet has a DOT logo at the top of the page and bears the title “LMBCO Meeting Sign-in Sheet” (id.). Attendees listed on the sheet include representatives from NYC DOT/LMBCO, Turner, FRB, Metro Loft Management, William Vitacco Associates, Rocky Panetta, and Con Edison (id.). Aguanno attests that “Con Edison was not asked as the meeting to deenergize any electric/feeder lines inside of a conduit,” and “the meeting was specifically about the high-pressure main extension and service to 84 William St” (id. 2). Additionally, Aguanno attests that a contractor performing excavation work in a sidewalk or roadway is required to call 811 and request to mark-out any underground utilities such as electric, gas, steam, or communication utilities, and New York State “requires this call so that contractors can safely dig and work in close proximity to utilities” (id. 4). He concludes that, based on his experience, “contractors routinely perform underground work in close proximity to live electrical feeders without incident if proper procedures are followed” (id.). In his affidavit, Corredor attests that he is a Project Construction Specialist currently working in Con Edison’s Construction Quality Assurance Department (NYSCEF Doc No. 153, Corredor aff 1). His duties include, but are not limited to, searching for Code 753 records maintained in the normal course of business (id.). Corredor further attests that, “pursuant to NYS regulations, contractors and/or excavators are required to call 811 to request code 753 mark-outs for roadway and/or sidewalk work to perform safe digging and to protect underground facilities” (id. 2). The mark-outs identify the location of all utilities, including electric (id.). “The call for the mark-outs is required to be made at least 2-10 days before the proposed date of excavation” (id. 2). Corredor performed a search for any Code 753 notifications of excavation work at the intersection of William Street and Maiden Lane and thirty (30) feet beyond the intersection from May 1, 2015 to July 31, 2014 (id. 3). Based on the results of the search, Corredor concludes that neither Turner nor Commodore made a Code 753 call or notification for the intersection during that time (id. 4). Relying on these submissions, Con Edison argues that it is entitled to summary judgment because Con Edison is not liable to plaintiff under Labor Law §200, 240, 241 (6) because it does not own the property where Plaintiff was injured, did not hire or control Turner or Commodore, and neither was performing work for Con Edison’s benefit. Con Edison further argues that it is not liable for common law negligence or under Labor Law §200 because it did not control or have the authority to control Plaintiff’s work and because Con Edison did not perform any work at the location of Plaintiff’s injury. Finally, Con Edison asserts that there is no negligence on the part of Con Edison because Turner and Commodore failed to request a “mark-out” of utilities in the roadway before commencing their work pursuant to 16 NYCRR §753. Plaintiff, Turner, and Commodore oppose Con Edison’s motion. Plaintiff contends that Con Edison was negligent because it knew Turner and Commodore were scheduled to begin work at the location, but did not ensure that the conduits were de-energized or ensure the area was properly marked out as required by 16 NYCRR §753 (NYSCEF Doc No. 255, Matarangas affirmation in opposition 8). Plaintiff asserts that there is a question of fact regarding whether Con Edison should have ensured that he was properly protected from the energized conduits before he was permitted to begin work on the assigned excavation (id. 9). Plaintiff asserts that Con Edison was negligent under Labor Law §241 (6) based on Industrial Code 23-1.13 in failing to ascertain where an electric source was located prior the work beginning; failing to provide warning signs; permitting Plaintiff to work in such proximity to an electric source; and failing to properly protect Plaintiff from an electric shock and/or explosion. Turner opposes Con Edison’s motion and argues that the court should disregard the Aguanno affidavit because Con Edison did not produce Aguanno for a deposition (NYSCEF Doc No. 270, Erickson affirmation in opposition 15-23), that Con Edison has not demonstrated that it was not required to de-energize the conduits at the subject location, and that a question of fact exists regarding whether Con Edison satisfied a duty to maintain its conduits in good condition (id.
24-26). Turner also cross-moves to compel Con Edison to produce Aguanno for a deposition. Con Edison opposes the cross-motion. Commodore opposes the motion and contends that there is no evidence indicating that Con Edison is completely free of negligence and that questions of material fact exist regarding Con Edison’s knowledge regarding the conduits still being powered on July 25, 2015 (NYSCEF Doc No. 286, El Arnaouty affirmation in opposition
