This case is not published in a printed volume and its disposition appears in a table in the reporter.
Anthony L. Parga, J.
Upon the foregoing papers, it is ordered that the motion by defendants The Parr Organization Incorporated and Touro College for an order pursuant to 22 NYCRR 202.21(e) striking plaintiff's Note of Issue and striking this matter from the trial calendar; an order pursuant to CPLR 3212(a) extending defendants' time to move for summary judgment; and, an order pursuant to CPLR 3124 compelling plaintiff to provide outstanding discovery is denied as moot.
The motion by plaintiff Andrew Vezzuto for an order pursuant to CPLR 3212 and Labor Law 240(1) granting him partial summary judgment against defendants The Parr Organization and Touro College on the issue of liability is granted as provided herein.
The motion by defendant third-party plaintiff The Parr Organization Incorporated and Touro College for an order pursuant to CPLR 3212 granting them summary judgment against third-party defendant Island Steel & Detailing Corp. is granted to the extent provided herein.
The cross-motion by third-party defendant Island Steel & Detailing Corp. for an order pursuant to CPLR 3212 granting it summary judgment dismissing the third-party complaint against it is denied.
The plaintiff in this action seeks to recover damages for personal injuries he sustained on September 29, 2005 while working at defendant Touro College as a union steel worker. While installing a turnbuckle on the frame of the open steel skeletal structure, the plaintiff fell to the ground below sustaining injuries to his neck, left foot and left ankle. In his complaint, the plaintiff has advanced claims pursuant to Labor Law as well as common law negligence against The Parr Organization and Touro College. The Parr Organization commenced the third-party action against Island Steel & Detailing Corp. seeking common law and contractual indemnification.
The defendant The Parr Organization was retained by the defendant Touro College as the project's General Contractor to build its new law school, the Jacob D. Fuchsberg College of Law. The Parr Organization's contract with Touro College requires The Parr Organization to defend, indemnify and hold Touro College and its representatives harmless to the fullest extent permitted by law from and against "claims, damages, losses and expenses, including attorney's fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a subcontractor, a Sub-subcontractor, and anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder." The Parr Organization subcontracted with the third-party defendant Island Steel & Detailing, Inc., via a Bid Quote and subsequently a contract for the fabrication and erection of the structural steel frame of the building. As was contemplated by the Bid Quote, Island Steel & Detailing subcontracted with the plaintiff's employer Vulcan Ironworks to erect the steel structure.
Presently, the plaintiff seeks partial summary judgment against The Parr Organization and Touro College with respect to liability on his Labor Law 240(1) claim. The Parr Organization and Touro seek indemnification from the third-party defendant Island Steel & Detailing Corp. And, Island Steel & Detailing Corp. seeks dismissal of the third-party complaint.
The pertinent facts are as follows:
The plaintiff testified at his examination-before-trial that he was employed by Vulcan Ironworks which, at the time of his accident, was erecting the steel frame of the new law school at Touro College. He testified that on the day of his accident, he was installing turnbuckles on the open steel frame of the third floor as his supervisor Vulcan Ironworks' foreman Jimmy "Lodi" Louidice had instructed him to do. He testified that he was not provided with a safety harness, tie line, static line, scaffolding or a platform and that there was no place for him to tie off to anyway. In fact, he testified that he was never instructed or told to use any type of safety equipment at all while working at Touro College. He testified that just before the accident, he was standing on a beam of the open steel structure near a column and what would be the elevator shaft, approximately eight feet away from the edge of the west side of the building. He testified that he unscrewed the turnbuckle, took it apart and then tried to put it into the nut on the nearby column and as he tried to put the turnbuckle back together, he fell backwards down to the deck below. He was standing on a beam slightly higher than the third floor level and fell down to the second level.
There is no dispute that neither The Parr Organization, Touro College nor Island Steel & Detailing played any part in controlling or supervising the work being done by Vulcan Ironworks.
Plaintiff's co-worker Troy Sammis has also attested that no fall protection was provided to him, the plaintiff or any of their co-workers at the Touro College work site and ...