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Bottcher v. West 44th St. Hotel LLC

Supreme Court, New York County

August 5, 2013

Joseph Bottcher, Plaintiff,
v.
West 44th Street Hotel LLC, TISHMAN CONSTRUCTION CORPORATION, and UNIVERSAL BUILDERS SUPPLY, INC., Defendants. WEST 44TH STREET HOTEL LLC, and TISHMAN CONSTRUCTION CORPORATION, Third-Party Plaintiffs, FIVE STAR ELECTRIC, INC., Third-Party Defendant.

Unpublished Opinion

ATTORNEY FOR THE PLAINTIFF:Firm: BROWN & GROPPER, LLP

ATTORNEY FOR THE PLAINTIFF: Firm: GROPPER LAW GROUP, PLLC

ATTORNEY FOR THE DEFENDANT: Firm: LEWIS BRISBOIS BISGAARD SMITH

Paul Wooten, J.

Motion sequence numbers 002 and 003 are hereby consolidated for purposes of disposition.

In this action, Joseph Bottcher (plaintiff) seeks to recover damages for personal injuries he allegedly sustained as a result of an accident that occurred in the course of his work at a construction site. Plaintiff now moves for summary judgment, in motion sequence 002, on his Labor Law §§ 200, 240(1) and 241(6) claims as against all defendants. Third-party defendant Five Star Electric, Inc. (Five Star) cross-moves for summary judgment dismissing the third-party complaint in its entirety.

Also before the Court, in motion sequence 003, is a motion by defendants/third-party plaintiffs West 44th Street Hotel LLC (West 44th), Tishman Construction Corporation (Tishman) and defendant Universal Builders Supply, Inc. (Universal) (collectively, defendants) for summary judgment (1) dismissing plaintiff's complaint, and (2) West 44th and Tishman move for summary judgment on their third-party claim for contractual indemnification as against Five Star. Additionally, West 44th and Tishman seek to dismiss all of the counterclaims Five Star has asserted in the amended third-party answer.

For the reasons stated below, plaintiff's motion and Five Star's cross-motion are denied. Additionally, defendants' motion for summary judgment is granted, only to the extent of: (1) dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims against all defendants, (2) dismissing plaintiff's Labor Law § 200 claims against defendant Universal, and granting that portion of the motion that seeks dismissal of Five Star's counterclaim for contractual indemnification, and is otherwise denied.

BACKGROUND

Plaintiff, an electrician in the employ of Five Star, alleges that, on August 10, 2009, he was injured while he was traveling as a passenger in a personnel hoist in a building under construction at 306 West 44th Street, New York, New York (the premises). After working in the elevator machine rooms at the top of the premises on the day of his injury, plaintiff claims that he got onto the personnel hoist to descend to the lobby floor (see Examination Before Trial [EBT] of plaintiff, at 73). Plaintiff alleges that he was injured when a portion of the personnel hoist he was riding in struck a loading dock landing, causing the rear metal door of the hoist to unexpectedly open and strike plaintiff in the back. According to plaintiff, after he heard a bang, he felt one or both of the handles of the rear hoist door hit him, and then he fell forward on his knees to the floor of the hoist (id. at 79-80, 84).

It is uncontested that the Owner of the premises, West 44th and Tishman entered into a contract dated July 18, 2007, wherein Tishman agreed to serve as construction manager at the premises, acting as agent of West 44th to "procure... all labor, materials and services for... construction" of a hotel (the project) (s ee Notice of Cross-Motion, exhibit F, Article 2). Under contracts that Universal and Five Star each signed with Tishman as "contractors", the "[c]onstruction [m]anager... agreed to act in a capacity as agent for [West 44th] in connection with the construction and/or renovation of the Project." [1]

The May 1, 2008 contract between Tishman and Five Star (the Five Star Contract) provides that Five Star would be the underground electric trade on the project. The September 16, 2008 contract between Tishman and Universal (the Universal Contract) provided that Universal was the trade engaged for the purpose of "hoisting, sidewalk shed, fencing and ramps" (see Notice of Cross-Motion, exhibit G). The Universal Contract contained "Rider 'A'", which set out Universal's "Scope of Work" regarding hoisting (id.).

In his complaint plaintiff alleges that defendants were negligent under the common law, and violated Labor Law §§ 200, 240(1), and 241(6). To support his Labor Law § 241(6) claim, plaintiff alleges that defendants violated Industrial Code sections 23-1.7(f), 23-5.1(f), (h), 23-6.1(b), (c), (d), 23-7.1 (b), (c), and 23-7.2 (b)(3), as well as various OSHA regulations.

In their third-party complaint against Five Star, West 44th and Tishman seek common-law indemnification and contribution, contractual indemnification and breach of contract for the failure to procure insurance. Five Star asserted counterclaims for common-law and contractual indemnification.

DISCUSSION

I. Summary Judgment Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus. Inc., 10 N.Y.3d 733, 735 [2008]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; CPLR 3212[b]).

When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]). If there is any doubt as to ...


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