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Hammond v. Toy Indus. Ass'n

United States District Court, S.D. New York

March 28, 2014

Richard Hammond et al., Plaintiffs,
v.
Toy Industry Association, Inc. et al., Defendants

Page 485

[Copyrighted Material Omitted]

Page 486

For Richard Hammond, Plaintiff: Joshua David Gropper, LEAD ATTORNEY, Law Offices of Judith Vargas, New York, NY.

For Toy Industry Association, Inc., Defendant, ThirdParty Plaintiff: Keith J Frank, Perez, Furey & Varvaro, Uniondale, NY; Joseph Varvaro, Perez & Varvaro, Uniondale, NY.

For Freeman Decorating Services, Inc., Defendant, Cross Claimant, Cross Defendant: Russell G. Tisman, LEAD ATTORNEY, Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP, Uniondale, NY.

For Jerome Bell, Defendant, Cross Defendant: Heidi M Weiss, The Law Offices of Edward Garfinkel, New York, NY.

For CompWest Insurance Company, Intervenor Plaintiff: Rachael E. Banks, Gibson & Sharps, Psc, Jersey City, NJ.

For Mahar Manufacturing Corporation, doing business as Fiesta, ThirdParty Defendant: Robert H. Fischler, Cartafalsa Slattery Turpin & Lenoff, New York, NY.

For New York Convention Center Development Corporation, Cross Defendant: Heidi M Weiss, The Law Offices of Edward Garfinkel, New York, NY.

For Toy Industry Association, Inc., Cross Claimant, Cross Defendant: Joseph Varvaro, Perez & Varvaro, Uniondale, NY.

For Fiesta Concession Corporation, doing business as Fiesta, Cross Claimant: Robert H. Fischler, Cartafalsa Slattery Turpin & Lenoff, New York, NY.

Page 487

OPINION AND ORDER

John G. Koeltl, United States District Judge.

The plaintiffs, Richard Hammond and his wife, Suzanne Hammond, brought this action to recover damages arising out of injuries that Mr. Hammond sustained on February 17, 2010 at the Jacob K. Javits Convention Center (" Javits Center" ) in New York City. At the time of the incident, Mr. Hammond was employed by Mahar Manufacturing Corporation d/b/a Fiesta (" Fiesta" ) and worked at a trade show at the Javits Center in which Fiesta participated. The action is currently pending against the following defendants: Toy Industry Association, Inc. (" TIA" ), the organizer of the trade show; Freeman Decorating Services, Inc. (" Freeman" ), the contractor hired by TIA to provide services to the trade show; and Jerome Bell,

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a forklift operator working at the Javits Center who allegedly injured Mr. Hammond. Also pending before the Court are TIA's third-party claims against Fiesta and cross-claims against Freeman for indemnification, as well as Freeman's cross-claims against Bell for indemnification. CompWest Insurance Company (" CompWest" ), the worker's compensation insurance carrier for Fiesta, intervened as a plaintiff.

This action was removed from the New York State Supreme Court, New York County. This Court has subject matter jurisdiction based on complete diversity of citizenship between the plaintiffs and the defendants and the requisite jurisdictional amount. See 28 U.S.C. § 1332. The propriety of removal is undisputed. With respect to the cross-claims and third-party claims among Bell, Fiesta, Freeman, and TIA, the Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) wherever diversity jurisdiction does not exist.

The defendants, third-party defendant, and cross-claim defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56.

I.

The standard for granting summary judgment is well established. " The [C]ourt shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). " [T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of " informing the district court of the basis for its motion" and identifying the matter that " it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and " may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).

II.

The following facts are undisputed for purposes of this motion, unless otherwise indicated.

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A.

In February 2010, TIA held a trade show, the American International Toy Fair (the " Toy Fair" ), at the Javits Center in New York City. Fiesta, Mr. Hammond's employer, rented and occupied a booth at the Toy Fair, where Mr. Hammond worked. On February 17, 2010, after the Toy Fair ended, Mr. Hammond was injured while the exhibition hall was being cleaned and while Mr. Hammond was putting away toys that had been exhibited in Fiesta's booth. Mr. Hammond was struck and injured by a plastic crate (known as a " fiber" ) that tipped from a forklift operated by a two-man crew consisting of defendant Bell and non-party Kendall Marshall.

The causes of the accident are disputed. There is some evidence that the fiber fell off the forklift because either the fiber or the forklift struck an aisle carpet that was rolled up and placed on the side of the aisle. (Varvaro Decl. Ex. O (Bell Dep.) at 64, 130; Varvaro Decl. Ex. L (Hammond Dep.) at 227-28.) Pat Cummings, a Freeman supervisor, was responsible for instructing laborers to roll up the carpets and leave them on the sides of the aisles. (Varvaro Decl. Ex. N (Cummings Dep.) at 117-19.) Another Freeman supervisor, Haynes Charles, observed the loading of forklifts and had the authority to stop the forklift operators if he deemed the loading to be unsafe. (Cummings Dep. at 58-59.) In addition, Mr. Hammond testified that some of Fiesta's boxes were in the aisle at the time of the accident and that Mr. Hammond was putting Fiesta's toys into those cartons, (Hammond Dep. at 55-56), but it is unclear whether Fiesta's cartons were involved in the accident. Marshall claims to have spoken with Mr. Hammond regarding the obstructions in the aisle after Mr. Hammond left the booth and suddenly entered the aisle. (Marshall Dep. at 55-60.) On the other hand, Mr. Hammond testified that he was working inside the booth at the time of the accident and that he was struck shortly after hearing some brief " yell[ing]." (Hammond Dep. at 53, 55, 60-61.) Factual disputes exist as to the location of various persons and objects as well as the precise sequence of events.

B.

To host the Toy Fair, TIA licensed the exhibition halls at the Javits Center from the New York Convention Center Operating Corporation (" NYCCOC" ), a public benefit corporation statutorily created by the State of New York and charged with operating the Javits Center. N.Y. Pub. Auth. Law § § 2560-61; (Varvaro Decl. Ex. I, Feb. 10, 2006 Revised Agreement at 3). TIA hired Freeman as the general services contractor of the Toy Fair. (See generally Varvaro Decl. Ex. J.) Freeman installed carpeting in the aisles, and arranged for and directed delivery of the exhibitors' belongings to and from the exhibit halls; forklifts were used to transport and deliver the fibers holding these belongings. (Varvaro Decl. Ex. J. at 13; Cummings Dep. at 7, 10-11, 28-29.) Freeman was also responsible for breaking down the Toy Fair by rolling up the carpets and removing the exhibitors' belongings. (Cummings Dep. at 13, 49.)

Neither Freeman nor TIA supplied the labor for these tasks. Instead, according to the license agreement between TIA and NYCCOC, NYCCOC had the " exclusive right to supply labor" to perform certain functions such as " loading, unloading[,] and moving exhibitor freight materials" except the hand-carry items, and " crating and recrating, and all work involved in the erection and dismantling of exhibits, displays, backgrounds[,] and booths." (Varvarco Decl. Ex. I, Feb. 10, 2006 Revised Agreement at 8, 14.) TIA, its contractor Freeman, and the exhibitors like Fiesta

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were not allowed to use any other labor for these functions, but were allowed to provide their own managers and supervisors. (Varvarco Decl. Ex. I, Feb. 10, 2006 Revised Agreement at 8, 14.) In order for Freeman to perform the duties under its contract with TIA, Freeman would submit orders to NYCCOC for laborers such as forklift operators and carpenters, and NYCCOC would provide the laborers, who were NYCCOC employees, to Freeman. Freeman would pay NYCCOC for the costs associated with using these laborers, and NYCCOC, in turn, would pay the salaries of these laborers.

These forklift operators, carpenters, and other laborers worked under the direction of Freeman's supervisors, who assigned work to the laborers, educated them about work safety, managed their schedule, and determined who would work overtime. At the same time, NYCCOC retained the authority to discipline or discharge these laborers. TIA was not involved in directing or supervising the laborers.

Defendant Bell and non-party Marshall were both forklift operators employed by NYCCOC and assigned to work at the Toy Fair under Freeman's direction. On the day of the injury, Cummings, a Freeman freight supervisor, assigned Bell the task of moving the fibers with a forklift and assigned Marshall to assist Bell. Mr. Hammond's injury occurred while Bell was moving the fibers with the forklift, assisted by Marshall.

C.

On May 6, 2011, more than one year after the injury, Mr. and Mrs. Hammond filed suit in the New York State Supreme Court, New York County against Freeman, Freeman Decorating Company (" FDC" ), the New York Convention Center Development Corporation (" NYCCDC" ), and TIA. Freeman and FDC removed the action to this Court on May 11, 2011 before any defendant was served.

On March 12, 2012, the Court granted NYCCDC's motion to dismiss all claims against NYCCDC for failure to comply with the notice-of-claim requirement. The Court also denied the plaintiffs' motion for leave to amend the complaint to add NYCCOC as a defendant, in part because the claims against NYCCOC were time-barred by the one-year statute of limitations (as of 2011) applicable to suits against NYCCOC and its employees. N.Y. Pub. Auth. Law ยง 2570 (McKinney 2011). Meanwhile, even though defendant Bell claimed to be an employee of NYCCOC and argued that the plaintiffs' claims were also barred by the same one-year statute of limitations, the Court denied Bell's motion to dismiss because there were disputed issues of fact as to whether Bell ...


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