The following papers numbered _ to _ were read on these motions (Seq. No. 6) noticed on and duly submitted as No. on the Motion Calendar of Sequence No. 6 Doc. Nos. Notice of Motion — Exhibits and Affidavits Annexed 214-235 Cross Motion — Exhibits and Affidavits Annexed 241-243 Answering Affidavit and Exhibits, Memorandum of Law 250, 256-257 Reply Affidavit 249, 251, 264-269 DECISION and ORDER Upon the foregoing papers, the motion and cross-motion listed above are decided in accordance with the annexed decision and order. (AND TWO OTHER ACTIONS) Upon the foregoing papers, third-party defendant T.R. Joy & Associates Inc. (hereinafter, “T.R. Joy”) moves pursuant to CPLR 3212 for an order granting summary judgment dismissing all claims against it. Defendant Touro College similarly moves pursuant to CPLR 3212 for an order granting summary judgment dismissing all claims against it. Plaintiff alleges that he was injured on June 24, 2014, when sheetrock which had been placed against a wall fell onto his arm. At the time of the accident, plaintiff was employed at a construction site where he was running wires for a security system. He testified at his examination before trial that sheetrock had been placed against a wall, in a location where he previously ran wiring. Approximately five to eight pieces of sheetrock, measuring four feet by eight feet, were stacked against the wall. They were placed with the “long” side on the floor, so that the height of the stack was less than four feet from the floor. Plaintiff went to that location to ascertain the height of a hole he had made previously for a security care “reader,” as he needed to make a similar hole in a different location. Plaintiff stated that the sheetrock was “pinching” the previously installed cables. When plaintiff pulled the sheetrock toward himself in order to reach and “clear” the cables, the stack of sheetrock continued to fall toward him. Plaintiff was knocked to the floor, and ultimately sustained a broken wrist. Plaintiff’s co-worker and supervisor Dickerson stated that the plaintiff was specifically instructed not to move the sheetrock; that the card reader was to be installed at a uniform 42 inches from the floor; and that no wires were being “pinched.” Moving the sheetrock was not only unnecessary for plaintiff’s work, but it was not part of plaintiff’s job description. Dickerson testified that the sheetrock was too heavy to move singlehandedly, as each sheet weighed 25-50 pounds, and the proper protocol would be to ask the company which supplied the sheetrock to move it.1 Plaintiff’s amended complaint interposes claims against the defendants sounding in common law negligence and violations of Labor Law §§200 and 241(6). Plaintiff’s expert has also raised issues under Labor Law §240(1). Movant T.R. Joy contends that plaintiff’s Labor Law §200 claims should be dismissed because plaintiff was a recalcitrant worker and the sole proximate cause of his own accident. With respect to plaintiff’s Labor Law §240 claims, T.R. Joy argues that Section 240 does not apply, as there was significant height differential, and further, again, that plaintiff was a recalcitrant worker and the sole proximate cause of his own accident. Additionally, this movant argues that plaintiff was not performing erection, demolition, painting, cleaning or pointing of a building or structure, or any work which would qualify as “alteration” for the purpose of Labor Law §240. Movant T.R. Joy contends that plaintiff’s Labor Law §241(6) claims also fail, because they are either barred by the sole proximate cause defense, are too general to give rise to liability, or do not apply under the circumstances. Movant also contends that the indemnity agreement it made with Touro College is overly broad, and thus void under the General Obligations Law §5-322.1. There is no limiting language for “partial indemnity” in cases in which Touro, as owner, is partially at fault for the happening of the accident. Attempting to read in a requirement of only partial indemnity, T.R. Joy argues, would be at odds with the plain contract terms and distort the contract’s intended meaning, as the contract makes no attempt to limit liability to the subcontractor’s negligence only. Further, T.R. Joy argues that Touro and All Pro are not entitled to indemnity as they allowed dangerous and chaotic work conditions to exist on site, forcing plaintiff to work amidst arguably improperly stored work materials and other trades rushing to get their work done. All Pro, Touro and MD Drywall cannot properly seek contribution, it is argued, because the subject accident, if not caused solely by the plaintiff, was caused by the creation of dangerous conditions by other defendants at the worksite. Cross-movant Touro argues that plaintiff’s negligence and Labor Law §200 claims must be dismissed as against Touro, as Touro did not create the condition or have notice of it, nor did Touro supervise, direct or control the plaintiff’s work activities or provide any equipment or tools to plaintiff. Plaintiff’s Labor Law §240(1) claim must be dismissed, Touro argues, as the statute does not apply given the absence of an elevation differential between the plaintiff and the sheetrock which fell upon him. Lastly, plaintiff’s Labor Law §241(6) claim must be dismissed as the Industrial Code sections cited by plaintiff are either inapplicable, or are too broad to serve as a predicate for liability. With respect to T.R. Joy’s motion, defendant Touro argues that T.R. Joy’s motion for dismissal of Touro’s third-party claim for contractual indemnity must be denied because (1) the indemnity provision in the Touro-T.R Joy contract was not void under G.O.L §5-322.1, (2) defendant Touro was not negligent, and (3) there exist issues of fact as to whether TR Joy was negligent. Further, Touro argues that aside from speculative considerations that the job was “rushed” and the work site “chaotic,” no dangerous condition existed. In this regard, Touro argues that the presence of stacked sheetrock leaning against a wall was not dangerous, as the sheetrock remained stable and did not fall in any manner before plaintiff’s attempt to move the pieces. In opposition, plaintiff does not dispute that T.R. Joy employed him, that he has no direct claim against his employer, or that Touro did not control the means and methods of plaintiff’s work. Plaintiff maintains, however, that Touro was in control of the construction site, and the storage of materials at the site, and the organization of various trades’ work. In this regard, plaintiff submits the report of an engineer, Paul Angelides, P.E., who states that there were 30 pieces2 of sheetrock placed against the wall, that sheetrock weighs 88 pounds per panel, and that sheetrock is dangerous if not stacked flat, to prevent sliding, falling, or collapse. Angelides submits various trade standards and OSHA standards. He concludes that the defendants were negligent by placing the boards against a wall without any device to secure them, and that this failure constituted a failure to use minimal safety measures which was a direct cause of the boards falling onto plaintiff. Plaintiff points out that defendants fail to set forth evidence as to who placed the sheetrock against the wall, how long the sheetrock was in that condition, and when the area where the sheetrock was placed was last inspected. Further, plaintiff observes that Touro’s agents and employees were heavily involved in the scheduling of the work and organization of the subcontractors working within. Several witnesses who testified to Touro’s daily presence on the site, and other evidence established that Jessica Black and Jerome Di’Imperio, Touro’s employees, were substantially involved in the scheduling of the work, directing the trades, and in fact hired their own subcontractors during the project. Plaintiff further argues that Labor Law §240(1) applies to the facts in this case. Plaintiff argues that the fact that the sheetrock was on the same level as the plaintiff is immaterial, and that the sheetrock was an object that required securing for the purposes of Section 240, and that the force of gravity was the cause of the injury. (See, e.g., Wilinski v. 334 East 92″” Housing Development Fund Corp., 935 N.Y.S.2d 551, 553-559 [2011]; see also, Runner v. New York Stock Exchange, 895 N.Y.S.2d 279 [2009]; Marrero v. 2075 Holding Co., LLC., 964 N.Y.S.2d 144, 146 [1st Dept. 2013].) With respect to Labor Law §241(6), plaintiff argues that the defendants’ failure to secure the sheetrock with a safety device, or keep the boards in a metal cart, was a violation of the Industrial Code 23-2.1(a), which provides that material piles must be stable, and not obstruct any “passageway, walkway, stairway, or other thoroughfare.” Labor Law §240(1) The Court initially rejects any theory that plaintiff was not involved in a covered activity. Plaintiff’s installation of security systems in a building under construction constituted a part of the construction of the new facility. Even if viewed as a “separate project” as urged by defendant movant, plaintiff’s activities of snaking wire and affixing control panels would constitute “altering” of a structure. As stated in one leading treatise: “Altering has been broadly construed to include what may be considered relatively menial tasks including running a wiring through walls or dropped ceilings. For example, in Morales v. D & A Food Serv., 41 AD3d 352, 839 N.Y.S.2d 464 (1st Dep’t 2007), reversed, 2008 NY LEXIS 1813, 2008 NY Slip Op 5769 (2008), drilling holes in a 10-to 12-foot wall to run telephone wires constituted an alteration as a matter of law, and in Sanatass v. Consolidated Investing Company, 10 NY3d 333, 858 N.Y.S.2d 67 (2008), the installation of a commercial air conditioning unit, which involved drilling holes and affixing metal rods into the ceiling, as well as installing air conditioning ducts and lifting the unit with manual lifts, constituted “altering.” (1 LexisNexis AnswerGuide New York Negligence §4.07.) Labor Law §240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks. (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 618 NE2d 82, 601 NYS2d 49 [1993]). Labor Law §240(1) imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work. Where an accident is caused by a violation of the statute, a plaintiff’s own negligence will not furnish a defense; however, where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability. Thus, in order to recover under §240(1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury. (Barreto v. Metropolitan Transp. Auth., 25 NY3d 426, 430, 34 N.E.3d 815, 817, 13 N.Y.S.3d 305, 307 [2015].) In Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. (18 NY3d 1, 935 N.Y.S.2d 551 [2011]), the Court of Appeals specifically held that a plaintiff is not precluded from recovery under Labor Law §240(1) solely because the worker and the object that strikes the worker are on the same level. In Wilinski, demolition debris from warehouse walls struck unsecured, 10-foot pipes leaning on a wall. The pipes fell at least four feet before striking plaintiff. The Court of Appeals found that a height differential existed of sufficient significance for Labor Law 240(1) to apply. The court found that unresolved issues existed as to whether plaintiff’s injury was the direct consequence of defendants’ failure to provide adequate protection against the risk by providing the kinds of protective devices required under Lab. Law §240(1). Wilinski is distinguishable form this case. Here, sheetrock tipped over from a height of four feet, not nine feet. Labor Law §240 has been held to be inapplicable in circumstances similar to those at issue here where sheetrock leaning against a wall or similar fixed surface fell over and struck a worker. (Wiley v. Marjam Supply Co., Inc., 166 AD3d 1106, 1107, 87 N.Y.S.3d 675, 677 [3d Dept. 2018] [Labor Law §240(1) claim was properly dismissed because sheetrock was stacked on its long side on the ground before it fell was on the same level as the sheetrock, thus, there was an absence of a significant elevation differential]); Seales v. Trident Structural Coro., 142 AD3d 1153, 38 N.Y.S.3d 49 [2d Dept. 2016] [§240 claim dismissed where a sheet of sheetrock that was leaning against a wall fell over, struck a railing and a piece of said sheet then broke off and struck plaintiff on the floor below]; Millard v. Hueber-Breuer Constr. Co., 4 AD3d 817, 772 N.Y.S.2d 173 (4th Dept. 2004) (§240 claim dismissed where sheetrock leaning against railing of movable manlift fell over and struck plaintiff who was standing in the manlift]). The Court accordingly holds that Labor Law §240(1) does not apply to this action. Labor Law §241(6) With respect to Labor Law §241(6), plaintiff argues that the defendants’ failure to secure the sheetrock with a safety device, or keep the boards in a metal cart, was a violation of the Industrial Code 23-2.1(a) (12 NYCRR 23-2.1 [a] [1]), which provides that material piles must be stable, and not obstruct any “passageway, walkway, stairway, or other thoroughfare.” In Wiley v. Marjam Supply Co., Inc. (supra, 166 AD3d 1106, 87 N.Y.S.3d 675 [3d Dept. 2018]), sheetrock stored in the corner of a room fell over, striking the plaintiff. The Court found no violation of 12 NYCRR §23-2.1 (a)(1), as the sheetrock was not obstructing any passageway. Similarly, here, while it is disputed whether the sheetrock was blocking plaintiff’s access to the work area, or damaging previously installed wires, there is no claim that the sheetrock obstructed any passageway. “As plaintiff’s injury occurred in an open work area, not in a passageway or a walkway, section 23-2.1 (a) (1) is not applicable (see Ghany v. BC Tile Contrs., Inc., 95 AD3d 768, 769, 945 NYS2d 657 [1st Dept 2012]; Waitkus v. Metropolitan Hous. Partners, 50 AD3d 260, 854 NYS2d 388 [1st Dept 2008]).” (Guallpa v. Leon D. DeMatteis Constr. Corp., 121 AD3d 416, 419, 997 N.Y.S.2d 1, 4 [1st Dept. 2014].) Plaintiff has not identified any applicable Industrial Code violation to support a claim under Labor Law §241(6). Common law negligence and violation of Labor Law §200 Plaintiff correctly points out that if a dangerous condition existed, defendant Touro failed to establish when it last inspected the area. Generally, to rule out constructive notice of a dangerous condition, the movant has the burden of establishing when it last inspected the premises. The burden is on the movant to establish lack of notice. Johnson v. 101-105 S. Eighth St. Apts. Hous. Dev. Fund Corp., 185 AD3d 671, 672, 124 N.Y.S.3d 852, 853 [2d Dept. 2020] ["To meet its burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the accident."]) Here, however, the stacked sheetrock did not present a dangerous condition. The sheetrock did not move until the plaintiff pulled the pieces toward himself. The materials submitted by the plaintiff, and the plaintiff’s expert opinion, are based on guidelines and industry standards that address the potential that improperly stacked sheetrock can fall over. This is not the case here. The sheetrock remained stable and secure until plaintiff attempted to move the entire stack into a vertical position. The accident arose from the manner in which plaintiff performed his work, i.e., the manner in which he chose to move the sheetrock. T.R. Joy disputes that plaintiff needed to move the sheetrock at all, and further maintains that he was specifically directed not to move the sheetrock. The Court cannot and does not resolve these issues of fact. However, whatever the facts were, the accident arose from the need to move sheetrock, and the manner in which plaintiff and his supervisor determined to move the sheetrock. Plaintiff’s accident arose from the means and methods by which he was required to do his work, and not from a dangerous condition on the premises. Defendant Touro did not control those means and methods. (Astrakan v. City of New York, 184 AD3d 444, 445, 125 N.Y.S.3d 709, 711 [1st Dept. 2020].) Indemnity The indemnity provision in the subject contract is extremely broad, and contains few limitations. The Court finds, contrary to T.R. Joy’s arguments, that indemnity is limited under the agreement to claims arising from the “terms and conditions” of the contract between T.R. Joy and Touro, and thus, the indemnity agreement does not cover claims unrelated to the contract between the parties. The indemnity provision does not specifically provide that Touro may not be indemnified against Touro’s own negligence. Nevertheless, where there is no evidence of fault on the part of the indemnitee, General Obligations Law §5-322.1 does not render the indemnity provision unenforceable. (Mathews v. Bank of America, 107 AD3d 495, 496, 968 N.Y.S.2d 15 [1st Dept. 2013] [reversing motion court's finding that indemnity agreement at issue was void and unenforceable under General Obligations Law §5-322.1, as there was no evidence that indemnitee was negligent].) Consequently, in view of the Courts finding that Touro was not at fault for the happening of the accident, the indemnity provision is enforceable. Accordingly, it is hereby, ORDERED that the motion of third-party defendant T.R. Joy & Associates Inc. pursuant to CPLR 3212 for an order granting summary judgment dismissing all claims against it is denied, and it is further ORDERED that the cross-motion of defendant Touro College is granted, and all claims and cross-claims against said defendant are dismissed. This is the Decision and Order of the Court. Dated: October 30, 2020
