premises. Boyette had arrived at the construction site for the first time that morning, had spoken to the union job steward about performing welding work for Dick, had filled out a W-2 form and had taken a drug test. Byt. Depo. pp. 25-29. Before hiring welders, Dick required applicants to pass a welding qualification test. While there is a dispute as to exactly what Boyette was doing when he fell, apparently he was standing in a separate "lay-down" or materials storage area where welding qualifications tests were being given. According to the report of Lee Wright, Algonquin's weld inspector on the site, Boyette tripped over "a two-by-four that some pipe was stacked on." Pl. Exh. E. (Dick asserts in its brief that Wright was conducting the test. Dick Br. P. 4) Boyette then tried to complete the welding test but was unable to do so and "had Dick take him to the doctor." Pl. Exh. E.
As a result of the fall, plaintiff suffered a herniated disc and had to have a lumbar laminectomy and excision of the ruptured disc. In his answers to Dick's interrogatories, he states that he suffers "permanent effects of pain, loss of motion, disability, loss of proper use, atrophy, anxiety and mental anguish," and has been "confined to bed and/or home, except for medical treatment and occasional excursions," and has been out of work from the time of the accident to the present. Pl. Exh. A, PP 8-11, 14.
Clayton and Delores Boyette brought suit against Algonquin in Supreme Court, New York County in August of 1993 alleging $ 10 million and $ 1 million in damages, respectively. Algonquin requested that Dick, Algonquin's general contractor, indemnify and defend Algonquin, but the request was denied.
Eisman Dec. Exh. G. In November, Algonquin impleaded Dick, asserting that Dick is obligated by contract to defend, indemnify and procure liability insurance for Algonquin. Dick had the case removed to this court, and in November 1995, Algonquin amended its Third Party complaint to allege that Dick had been negligent and had breached the contract by its manner of conducting activities at the site. In March of 1996, Algonquin served on Dick a request to admit its obligations to indemnify and insure Algonquin. This request has never been answered. In June of 1996, Algonquin brought this motion for a summary judgment that: 1) Algonquin is not liable to Boyette for negligence or otherwise under the labor laws; and 2) that Dick is contractually obligated to defend, indemnify and procure insurance for Algonquin against such liability. We discuss both contentions below.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(d). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).
Boyette has charged Algonquin with common law negligence and violations of New York Labor Law §§ 200(1) and 241(6). The New York Court of Appeals has explained that § 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. and Gas, 82 N.Y.2d 876, 609 N.Y.S.2d 168, 169, 631 N.E.2d 110 (1993). Section 241(6), by contrast, "imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers." Id. This section imposes liability regardless of the owner's control of the work being done. Adkins v. Trezins, 920 F.2d 164, 166 (2d Cir. 1990); Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630, 634, 376 N.E.2d 1276 (1978). We discuss each of these sections below.
A. Section 200
Although § 200 codifies the common-law duty upon owners to provide a safe work environment, an implicit precondition to this duty "is that the party charged with that responsibility have the authority to control the activity bringing about the injury." Comes, 609 N.Y.S.2d at 169 (citations omitted). Where an alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200. Id. Mere notice of the dangerous condition, standing alone, does not impose liability absent supervisory control. Id.
In Comes, the New York Court of Appeals upheld the Appellate Division's reversal of a denial of summary judgment to a defendant landowner sued under § 200 by an employee of the landowner's general contractor. Plaintiff Comes had been injured after being directed by the general contractor to carry a 14-foot steel beam unassisted. The Appellate Division noted that "this is not one of those exceptional cases where there is evidence that the owner actually exercised supervisory control over the contractor's work and had actual or constructive notice of the unsafe condition." Comes, 189 A.D.2d 945, 592 N.Y.S.2d 478, 479 (3d Dep't 1993). While defendant had a construction inspector who visited the work site, the Court of Appeals noted his duties were limited to observing the work and reporting to the contractor safety violations by the workers. Comes, 609 N.Y.S.2d at 169. It noted further that the inspector "had no reason to believe that Comes' employer would require him to carry the steel beam unassisted." Id. It then stated " More to the point, this Court has not adopted the reasoning of Nagel and imposed liability under the statute solely because an owner had notice of the allegedly unsafe manner in which the work was performed." Id. (emphasis added).
Plaintiff has established that Algonquin had notice of the allegedly dangerous condition. Mr. Convery, Algonguin's chief inspector in charge of ensuring "compliance with the contract and specifications," testified that he performed daily walking inspections of the construction site, which at times included the lay-down areas. Cnvy Dep. p. 47, 50. He stated that he had seen pipes being stored on two-by-fours on a "daily basis" in "all areas", including lay-down areas. Id. at pp. 50-51. In addition, Mr. Wright, inspector of welds for Algonquin, according to Boyette, was conducting the welding tests; he wrote out a report stating that Boyette tripped on a two-by-four that had some pipe stacked on it. Pl. Exh. E. In light Mr. Convery's testimony and Mr. Wright's report, it is difficult to imagine how Algonquin could claim that it did not have knowledge of the location of the two-by-fours.
More difficult to determine is whether Algonquin exercised the requisite control over the premises. It is clear that under the contract, Dick was given responsibility for insuring workplace safety.
The testimony of Dick's representative, James Barrickman, confirms this. He stated that he was the "individual assigned to job safety" and that he and "everybody else who works for Dick" were responsible for job safety. Brk. Depo p. 16, 71.
However, Algonquin's inspector, Pat Convery, testified that looking for potential safety problems was one of the functions that he performed in his daily inspections, "to the extent that it was required by the specifications." Cnvy Depo. p. 48. He noted that it was a "contractual requirement that the contractor maintain an orderly workplace, and if anything, to my knowledge, would not meet that specification, I would try to point it out, and above that, there is a general obligation to point out imminent hazards. . . . It would be routine to point out imminent hazards." Id. He also stated that he had the authority to stop the work if he felt there was an unsafe condition and that he had stopped work for safety reasons on prior occasions. Id. at 76-77, 85. As he put it, safety was one of his "concerns or job functions," and that it was "everyone's, really." Id. at 89.
While neither retention of inspection privileges nor a general power to supervise alone constitute control sufficient to impose liability (see Ortiz v. Uhl, 39 A.D.2d 143, 332 N.Y.S.2d 583 (4th Dep't), aff'd 33 N.Y.2d 989, 353 N.Y.S.2d 962, 309 N.E.2d 425 (1974); Ramos v. State of New York, 34 A.D.2d 1056, 312 N.Y.S.2d 185 (3d Dep't), lv. denied 322 N.Y.S.2d 1027 (1971)), the Third Department has found that where an owner had a "ubiquitous presence" and was "extensively" involved, it could have corrected or avoided the unsafe condition. Shaheen v. I.B.M., 157 A.D.2d 429, 557 N.Y.S.2d 972, 975 (3d Dep't 1990) (IBM contractually retained the authority to accept or reject finished work or stop work in progress, devised detailed construction and safety guidelines that the general contractor and the subcontractors were obligated to follow, and closely supervised and inspected the renovation.). See also Baker v. Int'l Paper, 226 A.D.2d 1007, 641 N.Y.S.2d 206, 208 (3d Dep't 1996).
There remains a fact issue as to whether Algonquin was so extensively involved in the project as to have the type of supervisory control to support liability under § 200. Similar to that involved in Shaheen, the contract at issue here provides that: "all employees and Subcontractors of Contractor engaged in the Work shall be subject to any rules and regulations promulgated by [Algonquin] from time to time for the safe, orderly, and efficient conduct of all Work or any other operations upon the Site." Alg. Exh. A, Sec. 3.9. The existence and extent of any such regulations is a material issue of fact. In addition, as in Shaheen, the Contract here gives Algonquin's engineer the right to reject work. (The Engineer can determine "whether all work done by Contractor has been performed in a good and workmanlike manner and in accordance with this Contact." If he does not approve the work, Dick is obliged to repair or replace it. Id. at Sec. 6.2. If Dick does not remedy its failure within five days, the company shall have the right to terminate the contract and hire someone else, Id. at Sec. 14.2, or to reject the work. Id. at Sec. 17.2.)
However, the contract also provides that "In no event shall the Company have control over or any responsibility for construction means, methods, techniques or procedures in connection with the Work, notwithstanding any of the rights and authority of the Company." Id. at Sec. 14.4. There is a dispute, however, as to who controlled the location of the lay-down area. Mr. Convery, (Algonquin's representative), testified that Dick selected the lay-down site and the test site, Cnvy. Depo. p. 72; Mr. Barrickman, (Dick's representative), stated that it was Algonquin who did so. Brk. Depo. p. 22. Barrickman further testified that welders could set up their own testing area within the "given area." Id. at p. 31. Clearly these disagreements and this ambiguous evidence point to the existence of numerous issues of fact regarding the degree of control Algonquin exercised over the project. Thus, we deny Algonquin's motion for summary judgment under both the common law and § 200.
B. Section 241(6)
Labor Law 241(6) provides:
All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, should comply with the following requirements: . . . all areas in which construction, excavation, or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The board may make rules to carry into effect the provisions of this subdivision . . .
(McKinney 1006)(emphasis added).
Algonquin initially urges that Boyette has not adequately stated a claim under § 241(6). Under § 241(6), a plaintiff cannot make only general allegations against a defendant but must allege specific violations of the industrial code. Id. ; Kaczmarek v. Bethlehem Steel Corp., 884 F. Supp. 768, 778 (W.D.N.Y. 1995) ("To ward off a motion for summary judgment a plaintiff proceeding under § 241(6) must adequately allege a defendant has violated one of the implementing regulations set forth by the Industrial Board of Appeals.") Here, Boyette has alleged that Algonquin has violated 12 N.Y.C.R.R. 23-1.7(e)(1) and (e)(2) (Tripping and other hazards - Working areas) and has thus met the specificity requirement.
Third-party Defendant Dick has argued that even if Boyette has adequately pled violations of 23-1.7(e)(1) and (2) the facts of this case do not support a violation of this Rule. Rule 23-1.7 provides, in relevant part:
23-1.7 Protection from general hazards.
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