Burkoski v. Structure Tone, Inc.

40 A.D.3d 378, 836 N.Y.S.2d 130
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 17, 2007
StatusPublished
Cited by41 cases

This text of 40 A.D.3d 378 (Burkoski v. Structure Tone, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkoski v. Structure Tone, Inc., 40 A.D.3d 378, 836 N.Y.S.2d 130 (N.Y. Ct. App. 2007).

Opinion

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 22, 2005, which, to the extent appealed from as limited by the briefs, (1) denied the motion by defendant and third-party plaintiff Structure Tone, Inc. (STI) for summary judgment dismissing the complaint or, in the alternative, for summary judgment as to liability on STI’s third-party claims [379]*379for contractual indemnification against third-party defendants Adco Electrical Corp. (Adco) and ARI Products, Inc. (ARI), (2) denied the cross motion by defendants Goldman Sachs & Go., The Goldman Sachs Group, Inc., CNA Financial Corporation, Continental Casualty Company, The Continental Insurance Company, and Boston Old Colony Insurance Company (collectively, Goldman) for summary judgment dismissing the complaint or, in the alternative, for summary judgment as to liability on Goldman’s cross claims for indemnification against STI, Adco and ARI, and (3) denied Adco’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion and cross motions granted to the extent of rendering summary judgment dismissing the complaint. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

This personal injury action arises from an accident that occurred in the course of work on a renovation project at defendant Goldman’s building. The construction manager for the project was defendant STI, which had subcontracted the electrical work to third-party defendant Adco and the floor installation work to third-party defendant ARI. At the same time Adco was doing the electrical work as STI’s subcontractor, it was also laying voice and wire cable pursuant to a direct contract between itself and Goldman. Plaintiff George Burkoski worked on the project as an employee of Adco.1

At his deposition, plaintiff testified that he was injured in a room that measured approximately 18 feet by 20 feet, and had a raised, tiled floor that was partially installed at the time. Plaintiff testified that floor tiles had not yet been installed on the room’s “outside perimeter on three sides,” leaving the concrete supporting pedestals exposed in those areas. Plaintiff was unable to approximate the percentage of the floor that was finished when he was injured.

Plaintiffs accident occurred while he and his partner were carrying a cable trough (a casing several feet long) through the above-described room to the closet in which the trough was to be installed. Plaintiff was holding the back end of the trough, and his partner was holding the front end. The part of the floor they were walking on was tiled and finished. At his deposition, plaintiff testified that, at the time, there were people from other trades working in the room, and uninstalled tiles were stacked in a number of piles that were “spread along the floor.” The [380]*380tiles were square, two feet by two feet, and had a thickness of two inches.

Plaintiff testified at his deposition that, when his partner made an unexpected right turn, the trough pushed plaintiff to the left, whereupon his left leg came into contact with a pile of 24 floor tiles stacked one on top of the other. Plaintiffs left leg somehow became stuck on the pile, which, given the two-inch thickness of the tiles, would have been four feet high. As plaintiff, with his left leg stuck on the stack of tiles, held onto the trough that his partner was carrying forward, his right foot slid out from under him, causing him to end up in a “split” position on the tiled floor. Plaintiff alleges that he injured both his knees in this incident. At the time, he was 56 years old and weighed 325 pounds.

In their direct action against STI (the construction manager) and Goldman (the owner), plaintiffs (Mr. Burkoski and his wife, who sues derivatively) assert causes of action under Labor Law § 241 (6), § 200, and common-law negligence. STI commenced a third-party action for, inter alia, contractual and common-law indemnity against Adco (the electrical and cable contractor that employed plaintiff), and against ARI (the floor installation subcontractor). Goldman asserted cross claims for contractual and common-law indemnification against STI, Adco and ARI.

After discovery, STI moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment as to liability on STI’s third-party complaint seeking indemnification against Adco and ARI. Goldman cross-moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment as to liability on its cross claims for indemnification against STI, Adco and ARI. Adco also cross-moved for summary judgment dismissing the complaint. Supreme Court denied all relief sought by the motion and cross motions except for dismissing plaintiffs’ Labor Law § 200 and common-law negligence causes of action as against Goldman, on the ground that uncontroverted evidence established that Goldman did not exercise direction or control over how the contractors performed their work (a determination not challenged on appeal). STI, Goldman and Adco each appeals from the motion court’s order to the extent aggrieved thereby.

We turn first to plaintiffs’ cause of action against STI under common-law negligence and Labor Law § 200, the statute that codifies an owner’s or general contractor’s common-law duty to maintain a safe construction site. To prevail on such a claim against an owner or general contractor, a plaintiff must prove that the party so charged exercised direct supervisory control [381]*381over the manner in which the activity alleged to have caused the injury was performed (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; O’Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226 [2006], affd 7 NY3d 805 [2006]). Further—as we recently held in O’Sullivan, which the Court of Appeals unanimously affirmed—evidence that a general contractor “may have had overall responsibility for the safety of the work done by the subcontractors . . . [is] insufficient to raise a question of fact as to [the] negligence” of the general contractor itself (id., citing Singh v Black Diamonds LLC, 24 AD3d 138, 140 [2005] [dismissing Labor Law § 200 and common-law negligence claims against general contractor, even though its project superintendent “conducted regular walk-throughs and, if he observed an unsafe condition, had the authority to find whoever was responsible for the condition and have them correct it or, if necessary, stop the work”] and Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [2005] [general contractor’s “contractual duties to supervise and enforce general safety standards at the work site did not create an issue of fact as to its negligence”]).

In this case, uncontroverted evidence establishes that STI did not exercise the degree of control over the operations of its subcontractors required to predicate liability for common-law negligence or for a violation of Labor Law § 200. Specifically, plaintiff and a representative of Adco both testified that STI personnel did not tell Adco or its employees how to perform Adco’s work, and a representative of STI testified that STI does not supervise its subcontractors’ work and does not tell them “exactly what to do.” Plaintiffs identify no evidence to the contrary. Further, the evidence that STI monitored safety at the work site—as did the general contractors in O’Sullivan, Singh and Torres—does not raise an issue as to whether STI’s own negligence contributed to plaintiff’s accident.

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Bluebook (online)
40 A.D.3d 378, 836 N.Y.S.2d 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkoski-v-structure-tone-inc-nyappdiv-2007.