Zhibensu v. 16 E. 39 th St. LLC

1

2024 NY Slip Op 32279(U)

ZHIBENSU, Plaintiff, v. 16 EAST 39TH STREET LLC, OMIBUILD CONSTRUCTION INC., and WWI CONTRACTING, CORP., Defendants.

16 EAST 39TH STREET LLC, and OMNIBUILD CONSTRUCTION INC., Third-Party Plaintiffs, v. ED ELECTRICAL INC., Third-Party Defendant.

ED ELECTRICAL INC., Second Third-Party Plaintiff, v. WWI CONTRACTING, CORP., Second Third-Party Defendant.

16 EAST 39TH STREET LLC, and OMNIBUILD CONSTRUCTION INC., Third Third-Party Plaintiffs, v. WWI CONTRACTING, CORP., Third Third-Party Defendant.

Index No. 522433/2019

Supreme Court, Kings County

July 1, 2024

Unpublished Opinion

RECEIVED NYSCEF: 07/02/2024

At an IAS Term, Part 66 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 1 day of July, 2024.

PRESENT: HON. RICHARD VELASQUEZ, Justice.

RICHARD VELASQUEZ, J.S.C.

The following e-filed papers read herein:

NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed

121-123, 138-140 157-159,185-186,189-190,193

Opposing Affidavits/Answer (Affirmations)

194-196, 203-205, 206-207, 211-212, 217-218, 220 225, 227-228, 230-231, 235-236, 241-242, 245-246, 248-249

Affidavits/ Affirmations in Reply

208-209, 255, 256, 258, 261, 266-267, 268-269, 271, 272

Other Papers:

______

Upon the foregoing papers, defendants/third-party plaintiffs/third third-party plaintiffs 16 East 39th Street LLC (16 East) and Omnibuild Construction Inc. (Omnibuild) (collectively referred to as "the Owner Defendants") move for an order, pursuant to CPLR 3212: (1) granting them summary judgment dismissing plaintiff's claims under Labor Law §§ 200 and 241 (6); (2) granting them summary judgment in their favor on their common-law indemnification and contractual indemnification claims as against defendant/second third-party defendant/third third-party defendant WWI Contracting Corp. (WWI Contracting); and (3) granting them summary judgment in their favor on their contractual indemnification claim as against third-party defendant/second third-party plaintiff ED Electrical, Inc. (ED Electrical) (motion sequence number 4). Plaintiff Zhiben Su moves for an order, pursuant to CPLR 3212, granting him partial summary judgment with respect to liability as against defendants (motion sequence number 5).^[1]WWI Contracting moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all cross-claims against it (motion sequence number 6). ED Electrical cross-moves for an order, pursuant to CPLR 3212: (1) granting it summary judgment dismissing the Owner Defendants' contractual indemnification claim against it; and (2) granting it summary judgment in its favor on its common-law indemnification claim as against WWI Contracting (motion sequence number 7).

The Owner Defendants' motion (motion sequence number 4) is granted only to the extent that plaintiffs Labor Law § 241 (6) cause of action is dismissed to the extent that it is premised on Industrial Code (12 NYCRR) § 23-1.7 (e) (1) and (2) relating to the slip on the pebble^[2] and to the extent that the portion of its motion for contractual indemnification from ED Electrical is granted for the portion of damages that are not attributable to the Owner Defendants' own negligence. The Owner Defendants' motion is otherwise denied.

Plaintiffs motion (motion sequence number 5) is denied.

WWI Contracting's motion (motion sequence number 6) is granted only to the extent that plaintiffs Labor Law § 241 (6) cause of action is dismissed as against it to the extent that it is premised on Industrial Code (12 NYCRR) §§ 23-1.7 (e) (1) and (2). The motion is otherwise denied.

ED Electrical's cross-motion (motion sequence number 7) is denied.

BACKGROUND

Plaintiff pleads causes of action premised on common-law negligence and violations of Labor Law §§ 200 and 241 (6) based on injuries he allegedly suffered on August 28, 2018, when he slipped and fell down a flight of stairs while walking down a staircase located in a building under construction (the Building). The Building was owned by 16 East. 16 East hired Omnibuild to act as the construction manager for the project, and Omnibuild, in turn, hired subcontractors to perform construction work on the project, including WWI Contracting, which performed carpentry work such as framing and drywall installation, and plaintiffs employer, ED Electrical, which performed electrical work that included installation of sockets, electrical boxes and wiring.

The Building at issue was an approximately 20 story building intended to serve as a hotel. At the time of the accident, the concrete superstructure, including two permanent staircases denominated as staircase A and staircase B, was complete. Various trades were then in the process of performing carpentry, masonry, electrical, mechanical, and plumbing work. According to plaintiffs deposition testimony, the accident happened as he was walking down staircase A on the way to the bathroom located on the first floor. When he was between the first and second floor of the Building, plaintiff slipped on a pebble the size of a ping pong ball and, as he was falling, he reached out with his right hand to grab something at which point his right hand hit a metal sheet, which cut his wrist. Plaintiff asserted that there was no wooden handrail on the staircase at the time he fell,^[3] and there had been no handrail at that location for the month prior to the accident. Plaintiff also asserted that he had seen rocks and pebbles on the staircase when he was climbing up the staircase to his work location earlier that morning.

In his deposition testimony, Ronald Renteria, Omnibuild's assistant site superintendent, identified the metal piece on which plaintiff cut his hand as flat stock, a metal blocking material attached to the wall of the staircase that would ultimately be used as a connection point for the permanent railing. According to Renteria, the flat stock was installed by WWI Contracting after it did the framing work, and that, after such installation, WWI Contracting was required to install a temporary wooden handrail. This temporary handrail would be removed when the drywall was installed, at which point the steel work contractor would install the permanent handrail. Although Renteria noted that the temporary handrail was missing on certain portions of the stairway approximately a month to a month and a half before the accident, he asserted this issue had been corrected well before the accident. Renteria, however, could not recall if the temporary handrail was present during his jobsite walkthroughs on the morning of the accident. Renteria also stated that, during his jobsite walkthroughs on the morning of the accident, he walked down the Building's staircases and did not see any rocks or pebbles on the steps. However, Renteria stated that he performed his inspection by going down the steps from the top floor, zig zagging between the A and B Staircases and he never specifically stated that he walked down Staircase A between the first and second floor. Nevertheless, Renteria did state that shortly after the accident, he walked up Staircase A, and did not see any pebbles or other such debris.

In contrast to Renteria's testimony, Angelo Amen, a part-owner of WWI Contracting, testified at his deposition that WWI Contracting generally did not install handrails, but did maintain them. In addition, after WWI Contracting installed flat stock, if there was a delay between the installation of the flat stock and the installation of the permanent handrail, it would put up caution tape to close off access to the stairway. WWI Contracting, according to Amen, would only install a temporary railing over the flat stock if it received a specific request for such from Omnibuild. Notably, however, Amen conceded that he could not tell who installed the temporary railing shown in the photographs taken by the Department of Building's inspector after the accident, and he admitted that he only visited the project location a couple of times a month.

Mark Cicio, the site safety coordinator at the project, testified that he observed a handrail attached to the flat stock when he viewed the accident location with the Department of Building's inspector. Cicio, however, did not know if that handrail was present at the time of the accident. Cicio added that a temporary handrail was required to be attached unless work on the staircase required its removal, in which instance the practice on the jobsite required that the staircase be cordoned off.

DISCUSSION

Plaintiffs Claims With respect to plaintiffs Labor Law § 241 (6) cause of action, under that section an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dept 2017]). Here, plaintiff, in his bill of particulars, bases his section 241 (6) claim on violations of Industrial Code (12 NYCRR) § 23-1.7 (e) (1), (2), and 23-2.7 (e).

Industrial Code (12 NYCRR) § 23-1.7 (e) (1) provides that "Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered. Section 23-1.7 (e) (2) provides that "Working areas. The parts of floors, platforms and similar areas...