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Bonocore v. Vornado Realty Trust

March 13, 2009


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


In this diversity action for money damages, Plaintiff Orazio Bonocore ("Bonocore") brings claims for physical injuries under New York State Labor Law §§ 200, 240(1) and 241(6) and for common law negligence, against Defendants Vornado Realty Trust ("Vornado"), Bovis Lend Lease ("Bovis"), 731 Retail One LLC ("731 Retail One"), 731 Commercial Holding , LLC ("731 Commercial Holding"), Alexander's, Inc. ("Alexander's"), 731 Residential, LLC ("731 Residential"), 731 Commercial, LLC ("731 Commercial"), 731 Residential Holding, LLC ("731 Residential Holding") and 731 Limited Partnership (collectively, "Defendants"). His spouse, Plaintiff Lisa Bonocore, brings derivative claims for loss of spousal consortium. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332.

Defendants move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on all claims. Plaintiffs cross-move for partial summary judgment on Bonocore's Section 240(1) claims. Both sides request the preclusion of certain evidentiary proffers. The Court has reviewed thoroughly the parties' submissions. For the reasons that follow, Defendants' motion for summary judgment is granted in part and denied in part, and Plaintiffs' cross-motion for partial summary judgment is denied.


The following material facts are undisputed unless otherwise noted.

On September 1, 1999, Bovis entered into a contract with 731 Limited Partnership, agreeing "to perform construction management and general construction work with respect to the construction of a mixed-use 54 story retail, office and residential project" at 731 Lexington Avenue, New York, New York. (Pls.' Mot. for Summ. J. Ex. N at 2.) The contract provided that Bovis "shall, in coordination with the Subcontractors, establish, implement and observe all safety, health and environmental protection measures during performance of the Work, consistent with the requirements of the Williams-Steiger Occupational Safety and Health Act of 1970 ["OSHA"]." (Id. at 12.) "Subcontractors" was defined as "an entity or person engaged directly by [Bovis] . . . who performs a portion of the Work for [Bovis] pursuant to a contract." (Id. at 4.) Bovis agreed to "be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Work. However, Subcontractors shall have primary responsibility for Project safety." (Id. at 46.) In addition, Bovis agreed to "take reasonable precautions for safety of, and [to] provide reasonable protection to prevent damage, injury or loss to employees on the Work . . . ." (Id.) The contract provided that Bovis "shall be responsible for all Subcontractor work as if it had been performed by [Bovis's] own forces." (Id.) Neither Bonocore nor the subcontractor who employed him was a party to the contract.

Plaintiffs proffer a safety manual entitled "Safety and Environmental Management System" ("SEMS"), which, according to the manual, served as an outline of Bovis's safety standards and goals. (Pls.' Ex. K.) The manual contained several references to OSHA standards and provided specifically that, for work taking place at an elevation of six feet or more, fall protection systems were required. (Id. at 91.)

On July 24, 2002, Bovis entered into a contract with North Side Structures, Inc. ("North Side"), which is not a defendant in this action, in connection with the construction project. The contract referred to Bovis as the "Contractor" and North Side as the "Subcontractor." (Pls.' Ex. O.) The contract provided in relevant part that, "where workers or material could fall more than six (6) feet, suitable fall protection devices such as harnesses, nets, etc., must be provided by Subcontractor and used by Subcontractor." (Id. at 9.) In addition, the contract provided that, "Subcontractor must comply in full with all applicable environment, health and safety . . . local and national legislation, including all OSHA regulations." (Id.)

In connection with the construction of the building at 731 Lexington Avenue, Bovis held weekly on-site progress meetings in order to coordinate subcontractors, and Bovis representatives interacted with North Side daily to find out if North Side had any questions. (Dep. of Geoffrey Butler at 25:2-9; 26:15-20; 109:17-110:9, annexed as Pls.' Ex. H.) Bovis also held safety meetings and had a safety representative on the site on a daily basis, who had the authority to stop any work he determined might be unsafe, and Bovis held safety orientations and training for the subcontractors' employees before they entered the construction site for the first time. (Id. at 78:7-25; 90:24-91:10; 124:19-23.) Geoffrey Butler ("Butler"), a superintendent for Bovis (id. at 5:20-22), was present at the construction site on most weekdays, and his job duties included coordinating the design of the building with the construction of the building, making sure the subcontractors were building pursuant to the design documents and answering questions the subcontractors had about the design documents. (Id. at 14:3-5; 14:19-15:3, 15:4-8, 18:7-14.)

Bonocore was an employee of North Side, working as a signal man at the construction site at all relevant times. Bonocore's job duties included unloading crane sections, which were about 10 feet tall, off of trucks so that the crane sections could be combined to form a tower crane for use in building construction. To unload the crane sections, Bonocore had to hook up each crane section manually, through cables that were wrapped around the crane section, to a large hook that hung at the end of a vertical, heavy steel cable called a "load line." The load line itself hung from a separate crane, and would then lift the crane section and place it in a specified area where the crane sections would be combined to form a tower crane. (See generally Dep. of Orazio Bonocore 9, 12, 18, 35, annexed to Decl. of Andrew Zombek dated Jan. 30, 2008, as Ex. F.) Bonocore testified that no one from Bovis or Vornado ever instructed Bonocore how to unload crane sections or as to his precise job role, and there is no testimony or evidence that Bonocore was instructed by any other Defendant as to how to perform his job duties. Bonocore testified that he was supervised by a North Side foreman. (Id. at 21:24-24:10.)

On October 3, 2003, Bonocore was injured in his groin and/or right hip area in the course of performing his job duties. The parties dispute the circumstances of the accident. Defendants proffer accident reports, whose admissibility is challenged by Plaintiffs, purporting to demonstrate that, while Plaintiff climbed the interior ladder of the crane, he felt a pop or strain in his groin or right hip area. (Zombek Decl. dated Feb. 19, 2008, Exs. AA, BB.)

Plaintiffs proffer a different scenario, as recounted through Bonocore's deposition and affidavits. Bonocore testified at his deposition that he was on top of the crane section when the injury occurred, about 10 feet off of the ground. (Bonocore Dep. at 35:17-23.) However, his deposition transcript also contains testimony that, at the time of the injury, he was wearing a hard hat but was not wearing a "safety belt" and that he did not need to wear a safety belt because he was working "down below" at "street level." (Id. at 26:18-28:2.)

Bonocore testified that he had both legs wrapped around part of the crane section and was attempting to hook the load line to the crane section when the load line suddenly swayed. (Bonocore Dep. at 36:2-11.) According to Bonocore, the load line sways "a lot," and no precautions could be taken to prevent the load line from swaying. (Id. at 29:10-14.) Because he was maintaining his grip on the load line, the sway pulled him a couple of feet, causing his left side to hang off of the crane section while his right leg was wrapped around the frame of the crane section. (Id. at 37:4-22.) As a result, he immediately felt a popping sensation in his right hip area, though he did not fall off the section and hit the ground. (Id. at 40:25.) Bonocore averred that his right leg was braced tightly to the crane section to prevent him from falling, and that he would not have had to brace the section with his right leg had he been wearing "safety equipment" that would have prevented him from falling. (Bonocore Supp. Aff. dated Feb. 18, 2008, annexed to Opp'n as Ex. A ¶ 3.)

The parties proffer evidence purporting to demonstrate that several of the defendants were owners of the land and/or the building prior to or at the time of the accident. According to publicly recorded deeds, 731 Residential Holding and 731 Commercial Holding transferred title to the land and the building on 731 Lexington Avenue to 731 Residential and 731 Commercial, respectively, prior to the accident. (Zombek Decl. Exs. V, W.) Plaintiffs proffer testimony by Daniel Berger ("Berger"), a vice president of Vornado involved in property development, that Vornado was also an owner of both the land and the building at 731 Lexington Avenue at the time of the accident. (Dep. of Daniel Berger at 6:22-7:3, annexed as Pls.' Ex. M.) Vornado created 731 Commercial for the purpose of developing the project, and it was "just another entity of the owner and acted the same way as Vornado did." (Id. at 17:9-12.)*fn1 Vornado also created 731 Limited Partnership, which was also an owner of the property at the time of the accident, and whose agents were also Vornado employees who "frequently" visited the job site to check on the progress of Bovis and the ...

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