Edwards v. State University Construction Fund

2021 NY Slip Op 04174

Stephen Edwards et al., Respondents-Appellants, v. State University Construction Fund et al., Defendants and Third-Party Plaintiffs-Appellants-Respondents, and Tim Duffek Contracting, Inc., Respondent; Ralo Construction, Inc., Third-Party Defendant-Appellant.

No. 531479

Supreme Court of New York, Third Department

July 1, 2021

Calendar Date: June 1, 2021

Law Offices of John Wallace, Syracuse (Michelle M. Davoli of counsel), for State University Construction Fund, defendant and third-party plaintiff-appellant-respondent.

Burke Scolamiero & Hurd, LLP, Albany (Steven V. Debraccio of counsel), for Fahs Construction Group, Inc., defendant and third-party plaintiff-appellant-respondent.

Hannigan Law Firm PLLC, Delmar (Timothy C. Hannigan of counsel), for third-party defendant-appellant.

Coughlin & Gerhart, LLP, Binghamton (Thomas H. Bouman of counsel), for respondents-appellants.

Santacrose & Frary, Buffalo (Keith M. Frary of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Colangelo, JJ.

LYNCH J.

Appeal from an order of the Supreme Court (Coccoma, J.), entered May 19, 2020 in Otsego County, which, among other things, (1) denied motions by defendants State University Construction Fund and Fahs Construction Group, Inc. for summary judgment dismissing the complaint against them, (2) partially granted a motion by defendant Tim Duffek Contracting, Inc. for summary judgment dismissing the complaint against it, and (3) denied a motion by third-party defendant for summary judgment dismissing the third-party complaints.

Plaintiff Stephen Edwards was injured during the renovation of SUNY Oneonta's Physical Sciences Building (hereinafter the building) when he allegedly hit his head on a wooden beam supporting a scaffold, causing him to fall backwards down a set of stairs. At the time of his accident, Edwards was employed by third-party defendant, Ralo Construction Inc., a subcontractor that provided laborers for the project. Edwards and his wife, derivatively, commenced this action against defendants the State University Construction Fund (hereinafter SUCF), Fahs Construction Group, Inc. and Tim Duffek Contracting, Inc. (hereinafter Duffek) ^[1] alleging violations of Labor Law §§ 200 and 241 (6) ^[2] and claims for common-law negligence and loss of consortium. Defendants answered and asserted cross claims for, among other things, common-law and/or contractual indemnification. SUFC and Fahs also commenced separate third-party actions against Ralo asserting claims for, as relevant here, contractual indemnification and breach of contract. Ralo, in turn, answered the third-party complaints and asserted counterclaims for apportionment.

Following discovery, defendants and Ralo each moved for summary judgment seeking various relief. Supreme Court denied that part of the motions by SUCF and Fahs seeking dismissal of plaintiffs' complaint, partially granted Duffek's motion to the extent of dismissing the Labor Law § 241 (6) claim as asserted against it, ordered that SUCF and Fahs were entitled to contractual indemnification from Ralo and denied Ralo's motion seeking dismissal of the third-party complaints. With respect to the Labor Law § 200 and common-law negligence claims against SUCF and Fahs, the court initially found that Edwards' injury derived from a dangerous condition at the construction site and not from the manner in which the work was performed, thereby obviating the need to establish supervisory control over the means and methods of the work to hold SUCF and Fahs liable. Using a dangerous condition theory of liability, the court declined to dismiss the Labor Law § 200 and common-law negligence claims against SUCF and Fahs, finding questions of fact as to their authority to control the area where the accident occurred and their actual or constructive notice of the alleged dangerous condition.

As to the Labor Law § 241 (6) claims, Supreme Court determined that there was a triable issue of fact regarding the sufficiency of the lighting in the stairwell at the time of the accident, thereby precluding dismissal of that claim as asserted against SUCF and Fahs. However, the court agreed with Duffek that the Labor Law § 241 (6) claim could not be maintained against it because there was no proof that it was a statutory agent with responsibility for the alleged violation of 12 NYCRR 23-1.30. Finally, the court rejected Ralo's argument that the indemnification provision set forth in its subcontract agreement with Fahs violated General Obligations Law § 5-322.1, finding that SUCF and Fahs were entitled to contractual indemnification from Ralo. Plaintiffs, SUCF, Fahs and Ralo appeal.

SUCF and Fahs argue that Supreme Court erred in denying the branches of their motions for summary judgment seeking dismissal of the Labor Law § 200 and common-law negligence claims. We disagree. Labor Law § 200 "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" (Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 [1993]; accord Stewart v ALCOA, Inc., 184 A.D.3d 1057, 1058 [2020]). "'Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed'" (Gomez v 670 Merrick Rd. Realty Corp., 189 A.D.3d 1187, 1191 [2020], quoting Ortega v Puccia, 57 A.D.3d 54, 61 [2008]). Under the first category, "a general contractor may be held liable in common-law negligence and under Labor Law § 200 if it created the dangerous condition or had control over the work site and actual or constructive notice of the dangerous condition" (Eversfield v Brush Hollow Realty, LLC, 91 A.D.3d 814, 816 [2012]; see Tomlinson v Demco Props. NY, LLC, 189 A.D.3d 1294, 1295 [2020]; Card v Cornell Univ., 117 A.D.3d 1225, 1226 [2014]). An owner who retains control of the premises may be liable for injuries resulting from a dangerous condition at the work site only if the owner "created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time" (Harrington v Fernet, 92 A.D.3d 1070, 1071 [2012] [internal quotation marks and citation omitted] see Mendoza v Highpoint Assoc., IX, 83 A.D.3d 1, 9 [2011]; Cook v Orchard Park Estates, Inc., 73 A.D.3d 1263, 1264 [2010]; Wolfe v KLR Mech., Inc., 35 A.D.3d 916, 919 [2006]). Where, however, the injury derives from unsafe work practices, an owner or general contractor may be held liable only upon "a showing of supervisory control and actual or constructive knowledge of the unsafe manner of performance" (Card v Cornell Univ., 117 A.D.3d at 1226; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 [1993]; Doskotch v Pisocki, 168 A.D.3d 1174, 1177 [2019]; Vogler v Perrault, 149 A.D.3d 1298, 1299 [2017]).

SUCF and Fahs maintain that Edwards' injury derived from the means and methods of the work performed, not from a dangerous condition. The evidence demonstrates otherwise. Plaintiffs' complaint alleges that, on January 27, 2016, Ralo assigned Edwards to perform work on the roof of the building, which required him to use the single internal stairwell. According to the complaint, as Edwards was ascending the stairs, he hit his head on a beam that was supporting a scaffold constructed over the stairwell, causing him to fall approximately 10 feet. Plaintiffs' bills of particulars also include a dangerous condition theory of liability ^[3] and the testimony elicited during the parties' depositions transcripts of which were submitted by SUCF and Fahs in support of their motions for summary judgment generally confirms that the accident occurred in the manner alleged. To that end, Edwards testified that, on the morning of the incident, he had been directed by Ivan Cote the superintendent of the project and president of Ralo to remove debris from the roof of the building. Edwards first positioned an extended lift flush with the roof as a makeshift dumpster, went inside and ascended the stairwell to access the roof, looking down at his feet while he walked to avoid potential trip hazards. As he was approaching the third floor, Edwards "all of a sudden" saw a "bright flash" and fell backwards. Edwards conceded that he did not see the beam prior to impact and while he could not specifically recall hitting anything, he denied having tripped on the stairs and posited, due to a cut on the bridge of his nose, that he had hit his head on the low clearance beam.

The deposition testimony of Jeffrey Rincavage, a carpenter who was employed by Duffek and was working in the stairwell at the time of the accident, generally supports that contention. Rincavage explained that Duffek was installing framing and drywall in the stairwell during the relevant time frame, necessitating the erection of the scaffold. As he and another Duffek employee were working in the stairwell, Rincavage saw Edwards pass him "in an awful hurry," taking the stairs two at a time while looking down. Rincavage then "heard a thump" and observed Edwards "falling backwards down the stairs," later giving consistent statements to the superintendent of Fahs and SUNY Oneonta police that Edwards had struck his head on the low clearance beam.

Although an owner or general contractor will not be held liable for a subcontractor's failure to furnish safe equipment (see generally Persichilli v Triborough Bridge &amp Tunnel Auth., 16 N.Y.2d 136, 146 [1965]), as noted by Supreme Court, this is not such a case, as there is no assertion that the scaffold or the support beam were defective (compare Cappabianca v Skanska USA Bldg. Inc., 99...