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November 21, 1994

EDWARD NOVAK, Plaintiff,

DAVID N. HURD, United States Magistrate Judge

The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge


 I. Introduction.

 This action for personal injuries was brought by plaintiff, Edward Novak ("Novak"), on November 9, 1992, upon filing of a complaint against BASF Wyandotte Corporation and BASF Corp. ("BASF"), the owners of a construction site. *fn1" A third-party complaint was filed by BASF on February 4, 1993, against general contractor Schenectady Steel Co. ("SSC") seeking indemnification. Plaintiff then filed an amended complaint on May 5, 1993 to include both BASF and SSC in his claims. With the service of answers to the amended complaint with crossclaims, BASF's third-party action was eventually discontinued. A second third-party complaint for indemnification was filed by SSC on June 24, 1993, against a subcontractor, Burt Crane & Rigging Services ("BCR").

 The first of the motions upon which we now focus was filed by the owners, BASF, on October 5, 1994. BASF moved for summary judgment upon common-law and contractual indemnification grounds against both the general contractor, SSC, and the subcontractor, BCR. On October 11, 1994, plaintiff moved for partial summary judgment against the owners and general contractor, BASF and SSC, on the issue of liability under Labor Law § 240(1). SSC cross-moved for a preclusion order against plaintiff for failure to produce discovery material, and for summary judgment against the subcontractor, BCR, for common-law and contractual indemnification. Finally, SSC filed a second motion for summary judgment against BCR because of BCR's failure to respond initially.

 Therefore, five motions must be addressed: (1) plaintiff's motion for partial summary judgment on liability against BASF and SSC; (2) BASF's motion for summary judgment against SSC and BCR; (3) SSC's two motions for summary judgment against BCR; and (4) SSC's cross-motion for a preclusion order. The court has carefully reviewed and considered all of the documents submitted by the parties. Oral argument was heard in Albany, New York, on November 3, 1994.

 II. Facts.

 This case revolves around an accident that took place on April 17, 1991, at a construction site in Rensselaer, New York, owned by BASF. This Rensselaer construction project entailed an addition to an already existing building at BASF's facility. BASF contracted with defendant and third-party plaintiff, SSC, for the fabrication and construction of the structural steel for that project. SSC in turn subcontracted the responsibility of erecting the addition's steel frame to third-party defendant, BCR. At the time of the accident, Novak was employed by BCR at the BASF Rensselaer site.

 BASF also contracted with Design Services Unlimited to oversee the engineering and construction on the entire project. Design Services president, Carl Ehle ("Ehle"), was on the site daily. His responsibilities included assignment of work, scheduling, coordination of interdisciplinary coordination between trades, material requisition, bid package writing, and estimating. It is undisputed that SSC likewise had an employee on site regularly.

 Novak and a coworker, Dan Hladik ("Hladik"), were working directly under one Peter Judson ("Judson") at the time of the accident. Judson, a supervisor for BCR, was responsible for directing labor at the job site, including the work of BCR employees and safety at the job site. On April 17, 1991, Judson directed each of them to begin "bolting up" a girder (a procedure of bolting a horizontal girder to a vertical beam), and further directed that they use a 32 foot extension ladder provided on the site by BCR. It is not clear whether Judson directed that the extension ladder be split into two 16 foot pieces; however, the two workers proceeded to do just that, Hladik taking the lower portion and Novak taking the upper portion. Novak leaned his ladder (which had no feet or rubber cleats on the bottom to ensure traction) against a vertical beam, with the base standing on a concrete slab. He climbed to what was estimated to be two rungs from the top of the ladder in order to determine the size bolt needed for the job. He wore a tool belt weighing upwards of forty pounds at the time, but he carried nothing in his hands.

 While leaning to the side of the beam to examine the bolt sizes, the base of the ladder slipped outward. The top portion of the ladder began to travel down the vertical beam against which it leaned. Its top rung was not tied off to prevent it from sliding in such a fashion. The ladder continued to descend at a quick rate; the bottom skidding along the concrete, the top sliding down the length of the beam. Novak rode the ladder the entire ten to fifteen feet to the ground. As a result, he claims that he sustained serious and permanent personal injuries.

 III. Discussion.

 A. Summary Judgment.

 A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell, Partnership v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the summary judgment motion." Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). In other words, a motion for summary judgment pursuant to Fed. R. Civ. P. 56 shall be granted only "when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law." Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). Therefore, "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Thus, if the nonmoving party cannot produce sufficient evidence to support the jury verdict, summary judgment is proper. Id. at 249. "In determining how a reasonable jury would decide, the Court must resolve all ambiguities and draw all inferences against the moving party." Lang, 949 F.2d at 580. However, when the moving party has met the burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Liberty Lobby, 477 U.S. at 247-48. At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id. "The judge's function is not . . . to weigh the evidence and determine the truth of the matter," Liberty Lobby, at 249, such "is the prerogative of the finder of fact." Murphy v. Provident Mutual Life Ins. Co., 923 F.2d 923, 930 (2d Cir. 1990) (Kearse, J., dissenting), cert. denied, 502 U.S. 814, 112 S. Ct. 65, 116 L. Ed. 2d 40 (1991). Therefore, the judge's role is "to determine whether there does indeed exist a genuine issue for trial." Liberty Lobby, at 249.

 In a case where multiple parties have moved for summary judgment, as is the case at bar, each side must sustain its burden of proving the absence of disputed issues of material fact in order to be successful.

 B. Plaintiff's Partial Summary Judgment Motion against BASF and SSC.

 Plaintiff purports to be entitled to summary judgment on the issue of liability, against BASF and SSC, the owner and general contractor of the Rensselaer construction site, respectively. Labor Law § 240(1) imposes absolute liability on owners, contractors, and agents for failing to provide adequate safety devices. N.Y. Lab. Law § 240(1) (McKinney 1986). *fn2" New York's Court of Appeals explained the reach of the statute, stating:

Thus, section 240(1) imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury. The duty imposed is 'nondelegable and . . . an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control.'

 Gordon v. Eastern Ry. Supply Co., 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127, 129, 626 N.E.2d 912 (1993) (quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991)). Furthermore, § 240(1) precludes any defense that the injured worker was contributorily negligent. Stolt v. ...

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