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Crave Foods Inc. v. Rapetti Rigging Services Inc.

Supreme Court, New York County

November 26, 2013

Crave Foods Inc. D/B/A CRAVE CEVICHE RESTAURANT, Plaintiff,

Unpublished Opinion

Daniel Franklin for East 51st Street O'MELVENY & MYERS LLP

Glenn J. Fuerth for New York Crane Wilson, Elser, Moskowitz, Edelman & Dicker


RICHARD A HARRIS for Brady Marine LAW OFFICES OF Andrea G. Sawyers

Howard Klar and Cindy Yu for RCG Gallo Vitucci & Klar

DAVID S SMITH for Greater New York Mutual Insurance GWERTZMAN LEFKOWITZ & BURMAN

HARTLEY T BERNSTEIN for Plaintiff Richard Solomon Bernstein Cherney LLP


ROBERT C SHEPS for Everest Reinsurance Company SHEPS LAW GROUP, P.C.

Carol Robinson Edmead, J.

In this multi-party litigation, defendant East 51st Street Development Company, LLC ("East 51st Street") moves for partial summary judgment against its co-defendants Reliance Construction Group d/b/a RCG Group, Inc. ("RCG") and Joy Contractors ("Joy") for contractual indemnification.

Factual Background

This action arises from the March 15, 2008 crane collapse accident during the construction of a high-rise building in Manhattan, which caused seven fatalities, serious injuries to many individuals, and multi-million dollars in property damage. The accident allegedly occurred when, during the process of jumping (extending the height of) the crane, the slings supporting the collar and tie-beams broke, causing the collar to fall and the crane to collapse.

In support of its motion for indemnification, East 51st Street, the owner of the construction site, argues that it was merely a passive developer in the construction project and that discovery thus far fails to demonstrate any negligence on its part for the accident. Thus, in light of this Court's previous determination that the indemnification provisions of RCG's and Joy's contracts were triggered, East 51st Street contends that summary judgment is warranted.

According to James Kennelly ("Kennelly"), one of East 51st Street's principals, East 51st Street engaged RCG as construction manager for the project in March 2007 pursuant to an "Early Start Construction Management Agreement" ("ESCMA"). [1]

In July 2007, RCG retained Joy pursuant to a contract for "Excavation, Rock Removal, Sheeting and Shoring, Underpinning, Dewatering, Rock Anchors, Foundation and Rebar Work" (the "Initial Joy Contract") to complete the work previously started but not completed by third-party defendant Civetta Cousins JV LLC (which was hired by East 51st Street's previous construction manager KBF). Although East 51st Street co-signed the Initial Joy Contract, RCG was allegedly responsible for supervising Joy's work at the site.

East 51st Street and RCG then entered into the "Construction Management Agreement" ("Initial CMA") in August 2007 to expand RCG's role at the site.

Thereafter in October 2007, RCG and Joy entered into a "Trade Contract" for Joy to provide labor and supervision necessary to erect the superstructure at the site.

In the Fall of 2007, Joy hired defendant Stroh Engineering Services, P.C. ("Stroh") to draft engineering plans for a tower crane at the site. East 51st Street contends that Stroh designed the tower crane installation such that the base of the crane was to rest on top of steel beams without being secured to those beams or to the ground. In connection with obtaining permits for the crane at the site, Joy and Stroh submitted the plan to RCG, and RCG approved the plan. Stroh also submitted the plans to the New York City Department of Buildings ("DOB"), which approved the plans.

Joy also hired third-party defendant C.S. Mechanical & Equipment Corporation ("CS Mechanical") to fabricate the tie-beams and steel dunnage called for by Stroh's design. The tie-beams secured the crane's tower section to the superstructure and the dunnage was located under the crane and distributed the crane's vertical load to two support walls.

In November 2007, RCG and Joy decided to rent a tower crane from New York Crane, and Joy and New York Crane entered into a Rental Agreement, wherein New York Crane reserved the right to provide an engineer to supervise the erection and dismantling of the crane. [2] New York Crane delivered the crane to the site in January 2008, and set up the equipment for erecting the tower crane. Joy employees then operated and maintained the crane at the site. Joy hired William Rapetti ("Rapetti"), a DOB certified "master rigger" to erect and jump the crane. And, the slings were supplied by Joy at Rapetti's request.

In January 2008, the Initial CMA between East 51st Street and RCG was replaced by a Construction Management Agreement ("CMA"), which enlarged RCG's responsibilities at the site. The CMA required RCG and RCG's subcontractors, to obtain various types of insurance, including commercial general liability and excess insurance. East 51st Street contends that RCG was required to manage and supervise all construction work at the site, and Joy was required to construct the superstructure at the site. Under the CMA and Trade Contract, RCG and Joy were responsible for safety at the site.

In January and February 2008, the crane experienced several malfunctions, which New York Crane employees attempted to repair. In one instance, when New York Crane was unable to repair a computer malfunction, Favelle Favco (the crane's manufacturer) sent an employee to examine the computer issues, who found flaws in the crane's electrical wiring.

The DOB inspected the crane each time it was jumped, including the morning of the accident. [3] The DOB also conducted general safety inspections.

After the accident, the DOB conducted an investigation, which resulted in a report (the "DOB Report") that revealed several causes of the accident, such as sling failure, improper use of the slings, improper welding of tie-beams, and improper rigging.

East 51st Street contends that in one of the many actions resulting from this accident, Della Porta v East 51st St. Dev. Co., LLC (Index No. 104427/2008), this Court ordered that the

the indemnification provisions in the CMA and RCG-JCI [Joy] Agreement have been triggered and RCG and JCI are obligated to indemnify East 51st [Street] for all losses, including defense costs, which arose out of or in connection with the "Work" of RCG, JCI, Stroh Engineering; William Rapetti and Rapetti Rigging, Inc.; C.S. Mechanical & Equipment Corp.; JCI; New York Crane, Favelle[] Favco Cranes (USA), Inc., ... Industrial Sales Company; Con Edison, and the City of New York;....
[However]...partial summary judgment on [East 51st Street's] causes of action against RCG Group, Inc. and Joy Contractors, Inc. for contractual indemnification is denied at this juncture, as premature.
(Order dated October 22, 2010).

The Court held that "in order to obtain summary judgment, East 51st [Street] must establish its freedom from negligence for the underlying accident, which East 51st [Street] failed to do." (Memorandum Decision p. 20).

East 51st Street argues it is not obligated to demonstrate which parties were negligent in order to establish that it was not negligent. East 51st Street need only show that it was not negligent, and discovery has failed to yield any evidence of negligence on its part. East 51st Street, which was operated by Kennelly and its other principal Charles McInnis, merely funded the construction project, played no active role in any construction-related activities, such as in the design of the crane installation or permitting and approval process, and only visited the site occasionally for an hour or two at a time, where they discussed the interior design of the building. Kennelly and McInnis never attended a safety meeting. Instead, East 51st Street retained RCG as construction manager to select, hire, and supervise all subcontractors at the site, and to ensure that all work was performed in a safe manner. East 51st Street also did not purchase, acquire or inspect the slings which broke during the rigging process. East 51st Street did not direct the work at the site, was not involved in the day-to-day activities at the site, did not hire or supervise any of the subcontractors at the site, and did not "jump" the crane. Neither Kennelly nor McInnis had the required DOB licenses to supervise any of the work relating to the crane at the site. East 51st Street was not consulted with when New York Crane hired Rapetti. East 51st Street contends that it had no role in the repairing of the crane's malfunctions. East 51st Street also points out that the DOB Report did not indicate any evidence that East 51st Street was negligent.

East 51st Street also contends that it was never notified of any safety issues at the site or of the crane, superstructure, equipment or materials. Further, any questions of fact related to East 51st Street's occasional participation in planning meetings where the installation of the ConEd vault and location of the crane were discussed, and its authority to reject subcontractors selected by RCG, is insufficient to defeat summary judgment. The decisions regarding the installation of the ConEd vault and location of the crane were made by RCG and Joy, not East 51st Street, and all of such decisions were approved the DOB. And, whether East 51st Street could reject RCG's subcontractors is irrelevant in light of this Court's previous determination that East 51st Street is entitled to indemnification if evidence demonstrated it was not negligent. In any case, there is no evidence that East 51st Street rejected any of RCG's subcontractors.

Therefore, argues East 51st Street, under caselaw, and in light of the above discovery and this Court's previous determination, East 51st Street is entitled to partial summary judgment on its contractual indemnification claims against RCG and Joy. [4]

RCG opposes the motion, arguing that even assuming the effectiveness of the CMA (which did not reflect the true agreement of the parties), the record demonstrates that East 51st Street retained and exercised extensive, active supervision and control over the project, including the day-to-day construction and design of and location of the tower crane. Further, there are various theories on why and how the crane collapsed, such as defects in the crane, defects in the straps and other accessories, improper design of the crane, and improper location of the crane. Thus, issues exist as to whether East 51st Street was negligent and whether such negligence was a proximate cause of the accident.

Under the CMA, East 51st Street retained oversight and final approval of materials and supplies, final authority for all major decisions and all testing and inspection on the project, and final authority to accept or reject all work on the project. East 51st Street's principals maintained an office and were present at the site daily, videotaped work on the project, issued directives regarding certain construction issues, required that all issues be brought up to Kennelly for final decision and approval, issued safety directions to workers, and attended numerous design and construction meetings. East 51st Street also made the final decision regarding the crane's base design and placement above the ConEd vault, which Stroh and Rapetti, in their many years of working together, found unusual. And, East 51st Street directed the parties at the site to continue to use the crane, notwithstanding its knowledge of the numerous defects and problems with the crane, its design, and its accessories. East 51st Street's active role in the project precludes summary judgment in its favor.

Further, under the special use doctrine, East 51st Street derived a benefit from the tower crane's placement on the public sidewalk and of the installation of the ConEd vault, and thus, had a duty to maintain the tower crane and its components in a reasonably safe condition. East 51st Street's breach of this duty constitutes negligence.

And, the self-serving affidavit of Kennelly and inadmissible documents are insufficient to support East 51st Street's motion. More than half of East 51st Street's submissions consists of unsworn letters, emails, reports, or documents produced by other parties and there is no foundation for these documents' admissibility. And, none of the admissible deposition testimonies was cited to support the claim of East 51st Street's nonliability. [5]

Plaintiff LaGreco seeks leave to intervene in order to oppose East 51st Street's motion. LaGreco contends that the agreements between East 51st Street and RCG were entered into for the sole purpose of securing financing for the project from potential lenders, and the lack of adequate financing created a serious risk for work progress and safety. That Kennelly and McInnis were not licensed is irrelevant. Further, that East 51st Street cannot identify the cause of the accident is sufficient to deny the motion, and Stroh's deposition testimony referencing East 51st Street's involvement in the crane's placement and its base design is sufficient, alone, to raise an issue of fact. Thus, the Court should search the record, find that East 51st Street was negligent as a matter of law, and grant summary judgment against East 51st Street. [6]

New York Crane does not oppose East 51st Street's request for relief against RCG and Joy, but takes issue with East 51st Street's suggestion that the crane's tower sections or computer caused the accident. New York Crane cites to various parts of the record to show that the crane was fully operational without any complaints for months before the accident, and that there were no computer issues or wire defects at the time of the accident. New York Crane also points out that East 51st Street failed to submit an affidavit from its engineering expert, Alyn Kilsheimer, who inspected the large and small crane parts.

Favelle Favco also does not oppose East 51st Street's request for relief against RCG and Joy, but seeks to correct inferences and assertions made about the wiring Favelle Favco found upon its inspection and the welding repairs made to 11 tower sections. The "wrong wiring" Favelle Favco found was due to incorrectly mated wires (the wiring had to be switched from "B" to "A"), and was corrected. Brady Marine completed its repairs to the 11 tower sections on July 17, 2007, and there is nothing to indicate that any of the "routine" weld repairs by Brady Marine failed or caused the accident. The record shows that the welding work was irrelevant because the towers were "all fine" and "nothing happened to the towers." Further, the record demonstrated that there was no problem with the operation of the crane following the first day of operation of the crane after servicing the crane on February 16th, until the date of the accident.

Brady Marine joins Favelle Favco, and adds that Rapetti testified that there were no sharp edges on the tower portions being used on the date of the accident.

In reply to RCG, East 51st Street argues that the purported facts stated by RCG are not based on the record, are misrepresentations, and are insufficient to raise an issue of fact as to East 51st Street's freedom from negligence. East 51st Street alleged supervisory power over Joy's work and alleged authority to stop work at the site are insufficient to raise an issue of fact as to East 51st Street's freedom from negligence, especially since RCG retained such authority and controlled access to the site. East 51st Street did not have notice of a dangerous condition and thus, was not negligent in failing to mitigate a potential danger, since the DOB and RCG approved the design and installation of the crane, which according to Stroh, was not "a hazard." And, since New York Crane and Favelle Favco repaired the previous defects in the crane, and there was no continuing defect in the crane, its removal from the site was unwarranted. Also, the caselaw cited by RCG is distinguishable in that East 51st Street was not required to identify unsafe conditions at the site, did not set up safety practices at the site, and merely retained inspection and supervision privileges, which is insufficient to impose liability. All of the cases RCG cites in support of the narrowly applied "special use" doctrine involved injuries received on public streets or sidewalks, and thus, are inapplicable since no party herein claims it was injured under similar circumstances. Nor is there any evidence that the crane was placed over a public sidewalk. The cause of the accident need not be determined in order to grant East 51st Street indemnification, and RCG points to no outstanding discovery that is needed to determine East 51st Street's freedom of negligence. And, the documents East 51st Street submitted, which were attached to an attorneys' affidavit, are admissible, and the caselaw cited by RCG on this issue are inapplicable as they involved the submission of expert reports which must be sworn or affirmed to be admissible. Nor is the DOB Report hearsay, because East 51st Street does not cite it to prove the truth of the matters asserted within the Report, but for the proposition that DOB conducted an investigation to determine the cause of accident and detailed its findings and conclusions in the Report.

Also, the partial opposition papers submitted by New York Crane, Brady Marine, and Favelle Favco provide no basis to deny summary judgment, as they take no position on the validity of East 51st Street's motion. And, because East 51st Street has moved solely against RCG and Joy, the Court's ruling herein will not have a preclusive effect on any party that has not opposed the motion.

In a separate reply (improperly denominated as a "sur-reply" filed on November 4, 2013), East 51st Street argues that the caselaw LeGreco cites fails to support its position. East 51st Street's retention of general supervisory authority over RCG at the site under the CMA is insufficient, under caselaw, to demonstrate East 51st Street's negligence. Also, East 51st Street's alleged activities at the site, i.e., the decision of the crane placement and its base design, and attendance at meetings, and participation in RCG's contractual negotiations with subcontractors, have no connection to the accident. There is no evidence that the crane's location or base design contributed to the accident. Also, East 51st Street's negligence cannot be determined based on the level of financing it was able to secure. And, that East 51st Street's principals were not permitted to visit the site after hours without RCG present shows that it was not negligent. LaGreco failed to cite to any facts in the record to defeat summary judgment, and fails to identify any discovery that could shed further light on East 51st Street's negligence.

And, the special use doctrine does not apply because the crane was not on a public sidewalk and no party claims that it was injured on a public street or sidewalk adjoining the site. In any event, Joy was responsible for maintaining the crane and the site, and assuming East 51st Street had such a duty, there is no evidence that East 51st Street breached the duty to maintain the crane.

East 51st Street is entitled to rely on the affidavit of its principal, and cited to numerous documents and depositions.

Furthermore, the Court should not grant leave for non-parties to intervene to oppose East 51st Street's motion. Everest, Greater New York, LaGreco, and Solomon (the "non-parties") have not provided any legal or factual basis to support intervention. The instant motion has no bearing on any party except RCG and Joy, and the Court decision will not have a preclusive effect on the non-parties.


As the proponent of the motion for summary judgment, East 51st Street must establish its cause of action against RCG and Joy sufficiently to warrant the court directing judgment in its favor as a matter of law in (see CPLR §3212 [b]; VisionChina Media Inc. v Shareholder Representative Services, LLC, 109 A.D.3d 49, 967 N.Y.S.2d 338 [1st Dept 2013]; Ryan v Trustees of Columbia University in City of New York, Inc., 96 A.D.3d 551, 947 N.Y.S.2d 85 [1st Dept 2012]). This standard requires that East 51st Street make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (see People ex rel. Cuomo v Greenberg, 95 A.D.3d 474, 946 N.Y.S.2d 1 [1st Dept 2012]; Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012], citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] and Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212 [b]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any material issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Wing Wong Realty Corp. v Flintlock Const. Services, LLC, 95 A.D.3d 709, 945 N.Y.S.2d 62 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572 [1986]; Ostrov v Rozbruch, 91 A.D.3d 147, 936 N.Y.S.2d 31

[1st Dept 2012]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman at 562; IDX Capital, LLC v Phoenix Partners Group, 83 A.D.3d 569, 922 N.Y.S.2d 304 [1st Dept 2011]).

At the outset, "the affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may serve as the vehicle for the submission of acceptable attachments which do provide "evidentiary proof in admissible form, " e.g., documents, transcripts (Furlender v Sichenzia Ross Friedman Ference LLP, 79 A.D.3d 470, 912 N.Y.S.2d 204 [1st Dept 2010] (granting summary judgment pursuant to CPLR 3211(a)(1) (documentary evidence) based on authenticated documents submitted through the affidavit of defendant's attorney "even though the attorney had no first-hand knowledge of the underlying facts")). Except for the DOB Report, all of the documents submitted by East 51st Street were authenticated either at a deposition or with an affidavit by a witness with personal knowledge of the facts contained in the document. [7]

It is noted that East 51st Street initially submitted the DOB Report to show that it was not identified as having any part in the cause of the accident, and in order to draw such a reference, East 51st Street must rely on the "truth" of the statements contained in the DOB Report, i.e., that the accident was caused by other parties. Further, as previously stated by the Court, the DOB Report, which contains numerous hearsay statements from numerous interviews conducted, was not authenticated. Thus, it cannot be considered in support of East 51st Street's motion. While this Court previously held that records of the DOB, upon a proper foundation and if properly authenticated, may be admissible under the business records exception to the hearsay rule, here, East 51st Street failed to establish any exception to the hearsay rule (See January 17, 2012 Memorandum Decision, p. 16). However, since the substantial documentation and deposition testimonies submitted by East 51st Street are admissible, it cannot be said that East 51st Street's motion is unsupported by evidentiary material. Nor can it be said that the affidavit of Kennelly is self-serving, as it does not directly contradict his deposition testimony (Capuano v Tishman Const. Corp., 98 A.D.3d 848, 950 N.Y.S.2d 517 [1st Dept 2012] (an affidavit that does not contradict one's prior deposition testimony and "provides additional details illuminating" such testimony is not self-serving); cf. Slates v New York City Housing Auth., 79 A.D.3d 435, 914 N.Y.S.2d 12 [1st Dept 2010] (holding that affidavit of plaintiff's son that directly contradicted deposition testimony of plaintiff was self-serving, and should have been disregarded)).

As East 51st Street points out, this Court previously stated that the indemnification provisions of the CMA and Trade Contract (previously referred to as the RCG-Joy Agreement) (Memorandum Decision, p. 12) are valid and enforceable, and thus, as the movant for contractual indemnification, East 51st Street must establish its freedom from negligence in relation to the crane collapse accident (Cook v Consolidated Edison Co. of NY, Inc., 51 A.D.3d 447, 859 N.Y.S.2d 117 [1st Dept 2008] (affirming denial of owner's summary judgment on contractual indemnification claim against tenant where issues of fact existed concerning owner's negligence)). [8] Liability for a construction accident that arose "out of the means and methods of the work, as opposed to a dangerous condition on the site" based on "common law negligence may be imposed where the defendant exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition'" (Alonzo v Safe Harbors of the Hudson Housing Development Fund Co., Inc., 104 A.D.3d 446, 961 N.Y.S.2d 91 [1st Dept 2013]).

East 51st Street established that under the CMA, RCG bore significant responsibility for managing all aspects of construction at the site to complete the project, including providing all supervision, "labor, material, equipment and supplies, " and administrative services, which naturally included the procurement of the tower crane and all of the accessories and labor necessary for its operation (Article II, "Scope of the Work, " 2.01). RCG was also responsible, under the CMA, to maintain the site in "a safe and orderly fashion, " and to ensure that it and its subcontractors complied with all safety "protection measures" at the site, including conducting inspections (CMA, ¶7.02(u)-(v)). And, in this connection, RCG engaged two site safety managers, superintendent (John Orsino) and the assistant superintendent (Michael Esposito), and, according to Joseph Martino (of Joy) a site safety manager from RCG was present "on the site every day" (Steenson EBT, pp. 82-83; Martino EBT, p. 168). RCG also engaged CRSG to provide "job safety set up and Site Safety Plan... and to identify deficiencies... and report said deficiencies to" RCG. (CRSG Proposal). Joy was also required to provide its own independent certified site safety manager for its work (Steenson EBT, p. 82). RCG engaged Joy pursuant to the Trade Contract for Joy to provide labor and supervision services concerning the superstructure (Trade Contract, ¶ 2.1, "Contractor shall furnish all labor, competent supervision, materials, scaffolding, ladders, tools, equipment, supplies and all required permits for JCI's equipment and approvals, and incidental material, etc., necessary or prosecution and completion of all work and related work...."). Joy advised RCG that a tower crane for the project was going to be used, and Joy engaged Stroh to design the tower crane configuration (Steenson EBT, pp. 90-92; Stroh EBT, pp. 591-593). Joy then rented the tower crane from New York Crane (Rental Agreement, dated November 29, 2007; Martino EBT, p. 28). Joy engaged CSM to fabricate the tie-beams and steel dunnage, and Rapetti to jump the crane (Martino EBT, pp. 28-29, 405, 462).

Further, East 51st Street demonstrated that Kennelly and McInnis only held an assistant broker license, and a broker's license, respectively, and did not have the engineering or other licenses necessary to undertake the obligation to perform the wide-ranging scope of duties delegated to the other entities (Kennelly, EBT, p. 373; McInnis EBT, p. 22). According to Kennelly, as "developers, [they did not] make any decision. [They] hire experts... and [] hope they do their job[s]" (Kennelly EBT, 174). Other than the construction meetings led by RCG, Kennelly participated in design meetings to discuss interior finishes (Kennelly EBT, pp. 162, 223). Kennelly did not know if there were safety meetings held at the site (id., pp. 223). Kennelly and McInnis never spent a full day at the site, but just observed the progress of the project and were not involved in the supervision of the subcontractors at the site (Kennelly EBT, pp. 228, 334-335, 711). And, to supplement the record, Kennelly's affidavit indicates that "East 51st Street did not direct or supervise any of the work at the Site, did not supply any of the tools or equipment at the Site, " played no role in designing, manufacturing, repairing, maintaining, operating, installing the crane, or in obtaining DOB's approval of the crane installation design. Kennelly attests that "East 51st Street did not make the decisions regarding the installation of the ConEd vault and the location of the [c]rane... did not purchase or acquire the slings that were used to jump the [c]rane... [and] was not responsible for inspecting the slings or for supervising the jumping process."

By virtue of the above, East 51st Street demonstrated that it was not negligent or otherwise responsible for the crane collapse accident.

However, the opponents and non-parties (by adoption) raised an issue of fact as to whether East 51st Street bore responsibility for the crane's design, installation and operation.

First, as to intervention, CPLR § 1013 provides that a court may grant leave to intervene if the proposed intervenor's claim and the main action "have a common question of law or fact" (American Home Assur. Co. v Port Authority of New York and New Jersey, Slip Copy, 40 Misc.3d 1236(A) [Supreme Court, New York County 2013]). "If this threshold requirement is met, the court then may exercise its discretion in determining whether to grant intervention" (American Home Assur. Co., supra, citing Vincent C. Alexander, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B C1013). "Intervention is liberally allowed..., permitting persons to intervene in actions where they have a bona fide interest in an issue involved in that action" (Schron v Grunstein, 41 Misc.3d 1207(A), Slip Copy [Supreme Court, New York County 2013] citing Yuppie Puppy Pet Prods., Inc. v Street Smart Realty, LLC, 77 A.D.3d 197, 201 [1st Dept 2010]). Here, the moving intervenors LaGreco and Solomon, and, Everest and Greater New York (which did not expressly seek leave to intervene), have a considerable, good faith basis to intervene, as they have direct negligence-based claims against East 51st Street, and, even if not collaterally estopped, would suffer adverse consequences by a decision herein concerning East 51st Street's negligence. Should the Court agree that East 51st Street was not negligent in the happening of the crane collapse accident, such a finding would have an adverse impact on the litigation of the negligence-based claims by such parties. Therefore, intervention by such parties in order to address East 51st Street's application herein is warranted. [9]

The Court need not determine, as a matter of law, the exact proximate cause or causes of the accident in order to determine whether East 51st Street was not negligent and thus entitled to contractual indemnification (see Zarem v City of New York, 6 A.D.3d 276, 774 N.Y.S.2d 695 [1st Dept 2004] (While questions of fact exist as to whether Shelter Express was negligent and whether any such negligence caused plaintiff's injury, Infinity Outdoor was entitled to contractual indemnification in the absence of evidence that plaintiff's accident was attributable to negligence on Infinity's part"), as helpful as that may be. Nonetheless, it is sufficient that a showing has been made that issues of fact remain as to East 51st Street's exercise of control over several aspects of the project which bear on the ultimate issue of liability for the crane collapse accident.

It is noted that daily presence at the site, instructions on what work was required, and retention of the right to stop work for safety reasons is insufficient; control over "how" the work was to be performed is critical to liability for negligence (see Foley v Consolidated Edison Co. of New York, Inc., 84 A.D.3d 476, 923 N.Y.S.2d 57 [1st Dept 2011] (finding that although Con Edison "directed Roadway crews to excavate certain sites, " was "always on site, " "admonished Roadway employees to hurry the work, " and "had the authority to stop work for safety reasons" Con Edison provided nothing "more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability" and thus, such actions were "insufficient to raise a triable issue of fact with respect to whether it exercised the requisite degree of supervision and control over the work being performed to sustain a claim... common-law negligence")). [10]

Notwithstanding East 51st Street's contentions to the contrary, the record indicates that two of the alleged factors that allegedly caused the crane to collapse was the location of the crane, and/or the crane base design. Therefore, as issues of fact exist as to whether East 51st Street was responsible for the decision to use, and continued use of the tower crane and its design and placement at the project site, summary judgment is unwarranted.

Stroh testified that East 51st Street was involved with the installation of the crane (EBT, p. 32), and that Stroh spoke with Kennelly about two options in designing the installation of the crane: to put the crane in a "free-standing foundation for the crane to support the loads" or "put the crane in over the vault and connect it to the building, which is the scenario we went with" (EBT, p. 318). East 51st Street was also involved in discussions about the placement of the base of the crane (EBT, p. 88), and worked with the engineer and architect in changing the design of building (EBT, p. 613). Stroh had to change the crane installation drawings "to comply with the new design drawings for the building" (EBT, pp. 613-614). Stroh testified that the majority of the tower crane installations he designed were for free-standing cranes where the foundation was anchored to the rock or into a poured concrete foundation (EBT, p. 80). When asked if any of them ever fell or tipped over, or if there was ever a danger of the base of those frames sliding out or shifting, Stroh replied "No, " "[b]ecause we design that not to happen" (EBT, pp. 80-81). Stroh then opined that such a free-standing crane design would have better served the subject project because they "would have been able to utilize the tower crane from the very beginning of the superstructure phase...." (EBT, pp. 186-187). East 51st Street and the "contractors" decided to install the vault and install the crane over the vault (EBT, p. 195). Mr. Stroh stated that if the ConEd vault had not been installed prior to the installation of the crane, he could have "extended the mat foundation of the building out into the sidewalk area and then used that to create a free-standing base for the tower" with "starter legs... embedded in concrete" (EBT, p. 684).

Martino (of Joy) also indicated that Kennelly was involved in the decision to place the crane over the ConEd vault installed into the sidewalk (EBT, pp. 143;101-102;119-120). Martino also discussed the placement or location of the tower crane with McInnis or Kennelly (EBT, p. 265). Martino testified that he and Stroh preferred using a conventional crane pad as the base "Because it's been tested and proven. It's used 90 percent of the time" (EBT, p. 99). And, according to Martino, the crane base was going to be set in a conventional manner, i.e., anchored to a concrete pad, but he "was prohibited from doing that by the construction manager and the developer" "Kennelly" because East 51st Street wanted to put the ConEd vaults in the ground; "[t]hey felt that they would lose too much time... " (EBT, pp. 97-98) and wanted to "expedite getting service into the building" and obtain a temporary Certificate of Occupancy sooner (EBT, p. 102).

Therefore, the record supports the contention that East 51st Street actively participated in the decision regarding the tower crane's design, installation of the ConEd vault, and the location of the crane, sufficient to raise a question of fact as to East 51st's Street's negligence. [11]

However, upon a search the record at plaintiff LaGreco's request, the Court declines to find that East 51st Street was negligent as a matter of law. Many issues of fact concerning East 51st Street's involvement in the decision concerning the crane base design and installation and installation of the ConEd vault, and the proximate causal relation of such decisions to the crane collapse accident, preclude a finding of negligence as a matter of law.


Based on the forgoing, it is hereby

ORDERED that the motion by East 51st Street for partial summary judgment against its co-defendants Reliance Construction Group d/b/a RCG Group, Inc. and Joy Contractors for contractual indemnification is denied; and it is further

ORDERED the application by John D. LaGreco (plaintiff under Index No. 107527/2008) for summary judgment finding that East 51st Street was negligent as a matter of law, is denied; and it is further

ORDERED that East 51st Street shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

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