Archer v. RSM U.S. LLP

1

2023 NY Slip Op 32412(U)

DWAYNE ARCHER, Plaintiff, v. RSM U.S. LLP; STRUCTURE TONE, LLC; 4TS II LLC; THE DURST ORGANIZATION, INC.; SMART SPACE, LLC; AMC INSTALLATION SERVICES LLC; and AMC TRANSFER INC., Defendants.

RSM U.S. LLP; STRUCTURE TONE, LLC; 4TS II LLC; THE DURST ORGANIZATION, INC., Third-Party Plaintiffs, v. SMART SPACE, LLC and TRITECH COMMUNICATIONS, INC., Third-Party Defendants.

SMART SPACE, LLC, Second Third-Party Plaintiff, v. AMC TRANSFER, INC., Second Third-Party Defendants

Index No. 508547/2020

Supreme Court, Kings County

July 14, 2023

Unpublished Opinion

At an IAS Term, Part 9 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at 360 Adams Street, Brooklyn, New York, on the 14^th day of July, 2023.

DECISION/ORDER

DEBRA SILBER, J.S.C.

The following e-filed papers read herein:

NYSCEF Doc. Nos.:

Notice of Motion/Cross Motion and

107-108, 138, 145-146, 181,

Affidavits (Affirmations) Annexed

183-184,210-212, 266-267

179, 214-215, 217, 233-234

233-234, 236-237, 239-240,

Opposing Affidavits (Affirmations)

249, 271, 274, 275, 276, 279

Affidavits/Affirmations in Reply _

230-231, 254, 255, 256, 265

Upon the foregoing papers, plaintiff Dwayne Archer moves for an order, pursuant to CPLR 3212, granting him partial summary judgment in his favor with respect to liability on his Labor Law § 240 (1) cause of action as against defendants/third-party plaintiffs 4TS II, LLC and Structure Tone, LLC, (Structure Tone) and with respect to liability on his common-law negligence cause of action as against defendant AMC Installation Seivices, LLC (AMC Installation) (motion sequence number 2). Defendant/second third-party defendant AMC Transfer Inc. (AMC Transfer) cross-moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and any and all cross claims counterclaims and third-party claims against it and granting it common-law indemnification from AMC Installation (motion sequence number 3). Defendant/third-party defendant/second third-party plaintiff Smart Space, LLC, (Smart Space) moves for an order, pursuant to CPLR 3212, dismissing the complaint and all cross claims against it (motion sequence number 4). AMC Installation moves for an order, pursuant to CPLR 3212 dismissing the complaint and all cross claims against it (motion sequence number 5). 4TS II LLC, Structure Tone defendant/third-party plaintiff RSM U.S. LLP (RSM US) and defendant/third-party plaintiff The Durst Organization, Inc., (Durst Org) (collectively referred to as the 4 Times Square Defendants) move for an order, pursuant to CPLR 3212, granting them: (1) summary judgment dismissing the complaint; (2) summary judgment in their favor with respect to their claims for defense, indemnification and insurance procurement as against Smart Space, AMC Transfer and third-party defendant Tritech Communications, Inc., (Tritech); and (3) summary judgment in their favor with respect to their cross-claims against AMC Installation for common law indemnification and contribution (motion sequence number 6).

For the reasons stated herein, plaintiffs motion (motion sequence number 2) is denied. AMC Transfer's cross motion (motion sequence number 3) is granted to the extent that the complaint is dismissed as against it, that Smart Space's third-party complaint is dismissed as against it, that Tritech's cross claim is dismissed as against it, that 4 Times Square Defendants' claims for common-law indemnification and contribution are dismissed as against it, and that Structure Tone and RSM US's claims for contractual indemnification are dismissed as against it. AMC Transfer's cross motion is otherwise denied. Further, Smart Space's motion (motion sequence number 4) is granted to the extent that the complaint is dismissed as against it, the cross claims of AMC Installation and Tritech are dismissed as against it, and any and all cross claims/third-party claims for common-law indemnification are dismissed as against it. Smart Space's motion is otherwise denied. Next, AMC Installation's cross motion (motion sequence number 5) is granted to the extent that the common law indemnification claims against it asserted by the 4 Times Square Defendants is granted, and is otherwise denied. Finally, 4 Times Square Defendants' motion (motion sequence number 6) is granted to the extent that plaintiffs Labor Law § 200 and common-law negligence causes of action are dismissed as against 4TS II LLC, the Durst Org, and RSM U.S. 4T; and granted to the extent that 4TS II LLC, the Durst Org, and RSM U.S. 4T are entitled to contractual indemnification from Smart Space; and granted to the extent that 4TS II LLC and the Durst Org are entitled to contractual indemnification from AMC Transfer and Tritech. The 4 Times Square Defendants' motion is otherwise denied.

Background

In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff alleges that he was injured on June 14, 2018, while working on a renovation project on the 20th floor of a building known as 4 Times Square, when glass panels that were stored leaning against a wall fell on him. 4TS II LLC has admitted that it owned 4 Times Square, the Durst Org has admitted that it had an ownership interest in 4 Times Square, and RSM U.S. has admitted that it was the tenant of the office space in 4 Times Square which included the 20^th floor. 4TS II LLC hired Structure Tone to be the general contractor for the renovation project and Structure Tone hired Smart Space to install interior glass office fronts on the 20th floor of 4 Times Square. Smart Space subcontracted the glass panel installation work to AMC Transfer, which in turn, subcontracted the installation work to AMC Installation. RSM U.S. (tenant) directly hired Tritech, plaintiff's employer, to install telecommunications infra structure for the offices, which included the installation of cable, data ports and Wi-Fi. Plaintiff was employed by Tritech as a technician to perform the installation work.

On the date of the accident, plaintiff was testing data ports on the 20^th floor of 4 Times Square. Plaintiff, in his deposition testimony, stated that he walked into the area where he accident occurred, holding the floor plans and tester unit, which he then rested on the top of approximately 10 glass panels that were stored leaning against the wall. Each panel was four feet by eight feet, and each panel weighed approximately 140 to 170 pounds.^[1] The panels were stored leaning against the wall on their long side. According to plaintiff, the panels farthest from the wall, however, were standing straight up. After noticing that the data port was hidden behind the panels, and after attempting to reach behind the panels to test the port, plaintiff stood up and started to walk away, at which time four or five of the panels fell onto plaintiff. The panels struck plaintiff on his left hip and leg, knocked him to the ground, and landed on top of him.

According to a Tritech supervisor who arrived on the scene after the accident and who prepared an accident report relating to the accident, plaintiff told him that the panels started to fall after he had "leaned against" them.^[2] In his deposition testimony, Pedro Valladares, an AMC Installation supervisor, stated that, at the time of the accident, he heard plaintiff screaming and, when he walked to where plaintiff was working, he observed approximately five glass panels lying on top of plaintiff. Valladares did not hear plaintiff state how the accident happened and Valladares himself had no idea why the panels fell. Valladares also testified that the glass panels had been stored in the area because AMC Installation was waiting for the carpeting to be installed before they could install the panels, and that AMC Installation had placed perhaps seven panels on top of either two-by-fours, drywall pieces or scrap carpet pieces, and left them leaning against the wall at a proper angle. He further testified that the panels had been stored there for approximately two to three weeks before the plaintiffs accident, waiting to be installed. Valladares was involved in stacking many of the panels on the 20^th floor, and, although he did not stack every panel himself, he asserted that he had inspected the panels stacked by other AMC Installation employees.

Discussion

Plaintiff's Causes of Action

Initially as Plaintiff, in his opposition papers, expressly concedes that AMC Transfer and Smart Space are not proper Labor Law defendants, and that they were not negligent, and thus, that the evidence does not support a Labor Law or common-law negligence cause of action as against them (NYSCEF Doc No 233, at ¶ 2), the court grants the portion of AMC Transfer's cross motion and Smart Space's motion seeking dismissal of the complaint as against them.

The court next turns to the issues raised by plaintiffs motion and the motions of the 4 Times Square Defendants and AMC Installation.

With respect to plaintiffs Labor Law § 240 (1) cause of action, section 240 (I)^[3]imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiff s injuries must be both the "direct consequence of the application of the force of gravity to an object or person" and "the direct...