SHLOMO HAGLER, J.S.C.
Motions with sequence numbers 004, 005 and 006 are'" hereby consolidated for disposition.
In this case, which arises out of a construction site accident, third-party defendant Regional Scaffolding/Safeway Environmental, NY Joint Venture, LLC, ("Regional") moves, in motion sequence number 004, for summary judgment dismissing the third-party complaint and all claims asserted against it.
In motion sequence number 005, plaintiffs move for an order (1) seeking summary judgment on the issue of defendants' liability under Labor Law § 240 (1); (2) striking defendants' fifth affirmative defense of release; or, (3) in the alternative, directing an immediate trial on the issue of the release.
Defendants/third-party plaintiffs Lower Manhattan Development Corporation ("LMDC") and Bovis Lend Lease LMB, Inc. ("Bovis") (together, "defendants") move, in motion sequence number 006, for summary judgment dismissing all claims asserted against them, and awarding LMDC contractual defense and indemnification against Regional.
On December 30, 2005, the day of the accident, John Roberts ("plaintiff"), a carpenter then in the employ of Regional, was working at the 27th floor of 130 Liberty Street in lower Manhattan. The building, which had been the Deutsche Bank Building before the events of "9/11, " was owned by LMDC. Earnest-John Domingo Ignacio ("Ignacio"), a project manager for Bovis, testified that the work was divided between Phase 1 and Phase 2. Phase 1 was the erection of the hoist and scaffolding, exterior scaffolding, and cleaning of one column bay on the north and south side of the building. Phase 2 was Bovis' portion of the project (Ignacio deposition ("dep.") dated August 19, 2010, at 38, attached as Exhibit "G" to Motion Seq 005).
Regional was LMDC's Phase 1 contractor (Ignacio dep. at 37). With respect to Bovis's contractual responsibilities, at the beginning of Phase 1, Bovis "installed a site fence, a gate, we had some security people on site and just ensure[d] that the building didn't fall down" (id. at 37). Before December 30, 2005, "the only work we did perform was site security and that's in the contract that we have to maintain site security, put a fence up" (id. at 91). Ignacio also testified that "Bovis had no responsibility whatsoever with respect to Phase 1, " and that "Bovis didn't actually do anything until Phase 2 began" (id. at 39) . Bovis' contract was "not for Phase 1"
(id. at 68) . On December 30, 2005, the date of plaintiff's accident, "[a]11 [Bovis] had there was security, just making sure that nobody wandered onto the site, making sure the structual integrity of the building was still kept, making sure nobody -- the environmental integrity of the building as still okay" (id. at 81). It is undisputed that Phase 2 commenced only after plaintiff's accident.
The accident occurred while plaintiff was working on a hanging rig scaffold (Greg Blinn dep. dated September 14, 2010, at 131, attached as Exhibit "M" to Motion Seq. 004). While the workers were moving the scaffold from one area to another, the rig swung out from the building, and plaintiff fell "[f]eet over head. Like a back flip" (Plaintiff's dep. of July 15, 2009, at 138-139).
Regional has a long-standing company-wide policy that, if an employee is injured, and the injury is not serious and the employee would not be away from work for too long a period, Regional would agree to pay the employee's weekly salary until the employee returned to work. In return, the employee is asked to sign a release, agreeing that the employee would not sue anyone associated with the project (Blinn Aff. Dated May 25, 2012, ¶¶ 5-6).
Less than a month after the accident, on January 20, 2006, plaintiff signed a release by which plaintiff received the sum of $1, 610 per week from January 3, 2006 to about February 3, 2006, in return ...