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Santanello v. City of New York

Other Lower Courts

January 30, 2008

Michael Santanello, Plaintiff,

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Thomas P. Aliotta, J.

Upon the foregoing papers, the motions and cross motions for summary judgment and/or dismissal of the complaint and cross claims pursuant to CPLR 3211(a)(7) and CPLR 3212 are decided as follows.

This action was commenced to recover damages for personal injuries allegedly sustained by plaintiff on January 11, 2002 while employed by defendant S. DiGiacomo & Son, Inc. At the time of the incident, plaintiff was performing renovation work at a construction site located on the second floor of the Merrill Lynch Building at 10 Teleport Drive, Staten Island, New York. According to plaintiff, he "stepped into an open floor hole" which he described as being the size of a single floor tile, i.e., some eight inches in width, one foot in length, and two feet deep. This hole was purportedly located five to ten feet away from a "tent" that plaintiff was constructing for plumbers and steamfitters who would be working on the concrete sub-floor located two feet below the level of the computer floor. According to plaintiff's deposition testimony, the renovation project required the removal of both large and small sections of the computer floor for certain periods of time in order to allow the electricians and plumbers to perform work "on the [concrete] floor underneath." After the work was completed, the removed sections of flooring were to be reinstalled. In sum and substance, plaintiff claims that each of the defendants was negligent in its ownership, maintenance, management, operation and/or control of the subject premises, and failed to provide him with a safe workplace in violation of Labor Law ยงยง200, 240(1) and 241(6).

In its motion to dismiss the complaint in its entirety pursuant to CPLR 3211(a)(7) and CPLR 3212, defendant the City of New York (hereinafter the "City") claims that it is an out-of-possession landowner that had no notice of the alleged hazardous condition, and exercised no supervision or control over plaintiff's work. The City further maintains that plaintiff did not sustain a gravity-related injury and that the Industrial Code provisions claimed to have been violated do not apply to the facts of this case.

Defendants DiGiacomo Construction Corporation and S. DiGiacomo & Son, Inc. (hereinafter, collectively, "DiGiacomo) cross-move for dismissal of the complaint and all cross claims against them based on the principles of common-law indemnification and contribution. In support of their motion, DiGiacomo alleges that (1) Workers' Compensation Law 11 precludes plaintiff from maintaining a liability action against his employer, S. DiGiacomo & Son, Inc., the general contractor for the infrastructure work; (2) plaintiff did not sustain a "grave injury" as defined by Workers' Compensation Law 11; (3) DiGiacomo Construction Corporation was never present at the work site nor engaged by contract or otherwise to render any work, labor or services related thereto; and (4) the undisputed facts do not support any violation of the Labor Law.

Defendants Port Authority of New York and New Jersey (hereinafter "Port Authority") and Merrill Lynch, Pierce, Fenner & Smith Incorporated (hereinafter "Merrill Lynch"), the lessees of the subject property, move for summary judgment dismissing the complaint and all cross claims against them on the grounds that (1) these defendants neither supervised plaintiff nor controlled the means or methods of his work, (2) plaintiff was not performing any tasks at an elevated work-site, and (3) the Industrial Code regulations upon which plaintiff purports to rely are factually inapplicable to the instant case.

Defendant Tishman Technologies Corp., the construction manager for the technology portion of the project, cross-moves for summary judgment on the grounds that (1) it was neither the general contractor nor a statutory agent in relation to the work being performed by plaintiff, (2) it had no control, supervision or direction over the injury-producing activity, and (3) it lacked the contractual obligation or authority to supervise any aspect of the construction portion of the project on which plaintiff was working. Although Tishman concedes that it coordinated the work performed by its electrical subcontractor, co-defendant Forest Electric Corp. (hereinafter "Forest"), it neither directed nor controlled the means or methods of its work.

For its part, third-party defendant Lowy & Donnath, Inc. (hereinafter "L & D "), retained as DiGiacomo & Son's electrical subcontractor, cross-moves for summary judgment dismissing Forest's third-party claim for common-law indemnification and/or contribution, as well as any cross claims against it on the ground that the claim that it created the subject "hole" is purely speculative. While concededly, from time-to-time L & D and the other trades would "lift tiles" to work on the sub-floor, L & D argues that DiGiacomo & Son's records indicate that Forest was present and working in the subject area running fiberoptic cables along the sub-floor on the date of plaintiff's accident. In addition, L & D points to the deposition testimony of its witness, Anthony Scala, who stated that the "majority" of the sub-floor work during the relevant time period involved Forest, and that the size of the "opening" at issue here was substantially larger (i.e., two or three times the size) of any "cut" that L & D would require to perform its work. It is also claimed that the deposition testimony of both plaintiff and Forest's foreman, Joseph McByrne, suggest that any of the on-site trades "could possibly" have been responsible for the subject opening.

In the final motion, defendant Forest moves for summary judgment dismissing the complaint and any cross claims against it on the ground that plaintiff has failed to establish any violation of the Labor Law, or any basis for holding it liable for common-law negligence. According to this defendant, it was subcontracted solely to install the electrical data equipment. In addition, the deposition testimony of DiGiacomo & Son's president establishes that it was his laborers who were responsible for removing the floor tiles to facilitate sub-floor electrical and steamfitting work, as well as protecting such openings with caution cones and tape. It is also claimed that DiGiacomo's daily logs indicate that it was its electrical subcontractor, L & D, which was creating " floor tile cuts" on January 10, 2002, the day before plaintiff's accident, and that the EBT of Forest's foreman establishes that a photograph depicting the subject opening reveals the presence of an electrical junction box which Forest did not install. He identified this item as part of L & D's portion of the electrical work. Finally, Forest relies on plaintiff's deposition testimony to the effect that he did not know "who made the hole" or when it was made, and that he first saw the opening after he stepped through it.

Preliminarily, any claims asserted by plaintiff against his employer, S. DiGiacomo & Son, Inc., must be severed and dismissed. Employees are precluded by section 11 of the Workers' Compensation Law from bringing any liability action against their employer absent a "grave injury" within the meaning of that statute. Moreover, there being no grave injury, any cross claims against this defendant/employer for other than contractual indemnification are also precluded by the Workers' Compensation Law.

Turning to the claims of common-law negligence and the alleged violation of Labor Law 200, it is well established that a plaintiff may not recover thereunder from any owner, general contractor or agent for injuries sustained as a result of defects or dangers arising from a subcontractor's performance unless it can be shown that the owner, general contractor or agent exercised supervisory control or direction over the operations in question ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505; Lombardi v Stout, 80 N.Y.2d 290). Moreover, "[g]eneral supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law 200"

( Dos Santos v STV Engrs.,8 A.D.3d 223, 224, lv denied 4 N.Y.3d 702; see Perri v Gilbert Johnson ...

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