Maldonado v. Hines 1045 Ave. of Am's. Inv'rs

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2022 NY Slip Op 34222(U)

MARIO MALDONADO, JULISSA MALDONADO, Plaintiffs, v. HINES 1045 AVENUE OF THE AMERICAS INVESTORS LLC, TURNER CONSTRUCTION COMPANY, FIVE STAR ELECTRIC CORP., Defendants.

HINES 1045 AVENUE OF THE AMERICAS INVESTORS LLC, TURNER CONSTRUCTION COMPANY Plaintiffs, v. FIVE STAR ELECTRIC CORP. Defendant.

Nos. 152214/2015, 595791/2016

Supreme Court, New York County

December 8, 2022

Unpublished Opinion

MOTION DATE 08/02/2022

PRESENT: HON. DAKOTA P. RAMSEUR Justice

DECISION+ ORDER ON MOTION

DAKOTA D. RAMSEUR, J.S.C.

The foliowing e-filed documents, listed by NYSCEF document number (Motion 002) 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99 100, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138 were read on this motion to/for _DISMISS.

Plaintiffs, Mario Maldonado (Maldonado) and Julissa Maldonado (collectively, plaintiffs), commenced this personal injury action pursuant to Labor Law §§ 200/common law negligence, 240(1), and 241(6), seeking damages for personal injuries allegedly sustained by Maldonado in a February 18, 2015, trip and fall while he was working at a construction project located at 7 Bryant Park, New York, New York (premises). Defendants, Hines 1045 Avenue of The Americas Investors, LLC (Hines), and Turner Construction Company (Turner) (collectively, the Hines defendants), now move pursuant to CPLR 3212 for summary dismissal of the complaint and all crossclaims. The motion is opposed. For the following reasons, the Hines defendants' motion is granted in part.

BACKGROUND

At the time of the incident, Maldonado was an ornamental ironworker employed by nonparty Jonathan Metal & Glass, Ltd. Maldonado was assigned to welding the installation of decorative steel panels at the front of the building's entrance, which leads to its lobby, and was working outside of the building, near the main entrance to the premises. At some point during the day, Maldonado used the bathroom within the premises. After he came back from the bathroom, Maldonado stood next to a heater to warm up. After he finished warming up, Maldonado testified that he began to walk, when he tripped on one or more electrical conduit stubs (conduit). Maldonado testified that he did not complete one step before falling. Maldonado testified that there were multiple conduits in the area where he fell and that the conduits were approximately one foot in height protruding from the floor. He further testified that he did not see the conduits before falling and that be observed buckets in front of the conduits.

The parties do not dispute that Hines is the project owner, Turner was the general contractor for the project, and that co-defendant Five Star Electric Corp. (Five Star) was the electrical subcontractor. Five Star was hired to perform electrical work at the construction site pursuant to an agreement with Turner dated February 20, 2013. Five Star's scope of work included installation of the conduits and electrical wiring for turnstiles. According to the agreement, Five Star agreed to indemnify the Hines defendants, including for legal fees and disbursements, for all damages or injury resulting from or arising out of the work Five Star was contracted to perform at the premises.

Radoslaw Brzezinski (Brzezinski), project supervisor for Turner, testified that Turner was responsible for implementing safety protocols at the work site. Brzezinski testified that part of Five Star's work at the site included the installation of conduit piping through the floor. The conduit piping was part of the turnstile construction. Brzezinski further testified that Turner was responsible to ensure that all the tradesmen on site were compliant with it the safety protocol. Brzezinski stated that Turner had authority to stop a worker from working unsafely, to correct an unsafe condition, and to remove debris that could cause tripping.

Frank Sceri (Sceri), project safety manager for Turner, stated that plywood encasing/boxes would be one method for barricading or covering or preventing a tripping hazard posed by the conduit. Sceri testified that the boxes were to be removed for the tile to be placed on the floor in the lobby. Sceri further testified that the conduit should be flush with the ground surface unless there was a specific reason for it to protrude. Specifically, Sceri stated that if he observed a conduit sticking out of the ground, he would direct the subcontractor responsible for that conduit "[t]o either cut it down or come up with another means of sawing it off so people would not trip on if (NYSCEF doc. no. 99 at 45:9-17). Sceri further testified that another method of making the conduits safe for people walking by would be to paint them orange.

Richard Sciarrone (Sciarrone), the foreman employed by Five Star, testified that Five Star was hired to install the electrical conduits that would ultimately feed electricity to turnstiles in the lobby. Sciarrone further testified that part of the project required that the conduit be installed into the concrete floor prior to the concrete was poured. Sciarrone stated that the installation of the conduit was part of the project. Sciarrone testified that the conduits in the lobby were installed approximately six to eight months before Maldonado's fall, and that the conduits were painted orange. Sciarrone further testified that after Five Star installed the conduits and that Turner was responsible to pour the concrete surrounding the conduits. According to Sciarrone, Five Star was directed to wait for Turner's direction to mark the conduits. Sciarrone further testified that Turner was responsible for maintaining the conduits after they were installed. He further states that Five Star was not responsible for the inspection of conduits after they were installed. Sciarrone further testified that he observed "[p]lywood boxes made over the conduits, built to go over the conduits" (NYSCEF doc. no. 98 at 71:6-8), According to-Sciarrone, the boxes were placed over the conduits to prevent the conduits from being damaged and to prevent people from tripping over such conduits. Sciarrone stated that Turner was responsible for installing the boxes, and that Turner hired a carpenter safety company to create and install the boxes. According to Sciarrone, the boxes would be removed "[w]hen the stone guys were putting in the marble that go under the turnstile" (id. 74: 6-10).

According to the Hines defendants' expert, Anthony J. Kelly, AIA, P.E. LEED AP, a construction site safety expert, states that Maldonado was not required to be provided with safety devices since at the time of his accident his was not exposed to any gravity related risk since he was simply walking across the lobby floor. Kelly further states that the conduits were "an integral part of the work relating to the installation of the turnstiles" (NYSCEF doc. no. 101 at ¶ 21).

Nicholas Bellizzi, P.E., plaintiffs' expert, states that Turner maintained a standard requirement for work performed at the premises, entitled the Turner Building L.I.F.E., which required all conduits to be flush with the floor. Bellizzi further states that the conduits were specifically cited to be slip/trip/fall hazards to surrounding trades which is what occurred in this case to Maldonado. Bellizzi states that the conduits should have been cut flush with the floor surface. Bellizzi testified that the purpose of the conduit was to provide a hole in the concrete floor for the electrical wires to be run to the turnstiles. Bellizzi indicates that while the conduits could have been protruding when the concrete was being poured, the protruding conduits should have been cut flush after the concrete cured.

In support of their motion for summary dismissal, the Hines defendants argue that plaintiffs' claim pursuant to Labor Law § 240(1) should be dismissed because the incident did not stem from a fall from an elevated height or as a result of a falling object. The Hines defendants next argue that plaintiffs' Labor Law § 241(6) claims pursuant to Industrial Code §§ 23-1.5, 23-1.7(d). 23-1.7e(1), 23-17e(2), 23-1.30, 23-2.1(a)(1), 23-2.1(a)(2) and 23-2.1(b) should be dismissed. The Hines defendants further argue that the subject conduits were integral to the work performed at the construction project because they were part of the installation of the turnstiles. The Hines defendants next argue that plaintiffs' claims under Labor Law § 200/common negligence should be dismissed because neither of the Hines defendants installed the conduits or directed, controlled, or supervised the means and methods of Maldonado's work. Next, the Hines defendants contend they are entitled to judgment on its crossclaim for indemnification against Five Star because plaintiffs' injuries arose from Five Star's work at the premises. In the alternative, the Hines defendants argue they are entitled to a conditional order of contractual indemnification.

In opposition, plaintiffs argues that the Hines defendants failed to demonstrate that the conduits were integral to the construction project. Plaintiffs also argue they are entitled to an adverse inference concerning documents related to whether the conduits were integral to the project. Plaintiffs further contend that the Hines defendants' expert affidavit is speculative and thus insufficient to demonstrate that the conduits were integral and that the expert fails to set forth what "discovery responses" he reviewed other than unspecified incident reports and progress photographs, the latter of which plaintiffs argue were never produced in discovery although they were demanded. Plaintiffs further argue that Kelly's disclosure is...