Callan v RCB3 Nominee LLC 2024 NY Slip Op 32968(U) August 23, 2024 Supreme Court, New York County Docket Number: Index No. 158801/2019 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 158801/2019 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/23/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 158801/2019 FRANK CALLAN, MOTION DATE 12/12/2023 Plaintiff, MOTION SEQ. NO. 001 002 003 -v- RCB3 NOMINEE LLC, TISHMAN CONSTRUCTION DECISION + ORDER ON COMPANY, MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 89, 100, 101, 102, 103, 106, 107, 108 were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 002) 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 92, 93, 104, 105, 109, 110, 111, 112, 113 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 91, 94, 95, 96, 97, 98, 99 were read on this motion to/for JUDGMENT - SUMMARY .
This is an action to recover damages for personal injuries allegedly sustained by plaintiff
on December 28, 2018, when, while working on a construction site located at 10 Riverside
Boulevard, New York, New York (the Premises), he allegedly fell from a ladder.
In motion sequence number 001, plaintiff moves, pursuant to CPLR 3212, for summary
judgment in his favor on his Labor Law § 240(1) claim as against defendants/third-party
plaintiffs RCB3 Nominee, LLC (RCB3) and Tishman Construction Company (Tishman)
(together, defendants).
In motion sequence number 002, defendants move, pursuant to CPLR 3212, for summary
judgment dismissing the complaint as against them and for summary judgment in their favor on
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their third-party claim for contractual indemnification as against third-party defendant J&L
Electrical & Communications Group, Inc. (J&L).
In motion sequence number 003, J&L moves, pursuant to CPLR 3212, for summary
judgment dismissing the third-party complaint as against it.
The motions are hereby consolidated for disposition.
I. BACKGROUND
On the day of the accident, the Premises was owned by RCB3, which had hired Tishman
to provide construction management services for a project at the Premises that entailed the
construction of a new residential tower (the Project). Tishman subcontracted mechanical work to
non-party JPR Mechanical, Inc. (JPR), which subcontracted some of its work to non-party
Automated Logic Contracting Services, Inc. (Automatic), which then subcontracted electrical
work to J&L. Plaintiff was employed by J&L.
Plaintiff’s Testimony (NYSCEF Doc. No. 67)
Plaintiff testified that on the day of the accident, he was a electrician employed by J&L.
He worked on the Project and was supervised by a J&L foreman (plaintiff’s tr at 33), from whom
he received directions (id. at 43).
Plaintiff’s duties included “running conduit and pulling wire, installing conduit” (id. at
34). On the day of the accident, plaintiff’s task was to install conduit and pull wire throughout a
particular room at the Premises.
Immediately before the accident, plaintiff was installing conduit approximately seven feet
above the floor (id. at 44). To do so, plaintiff needed to use an 8-foot-tall fiberglass A-frame
ladder to reach the installation area, and before climbing the ladder at issue, he inspected it and
found it to be in good condition and not missing any pieces (id. at 45).
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He climbed to the third step of the ladder and performed his work, which included
drilling a hole in the top of an electrical box (id. at 52). Once plaintiff finished drilling the hole,
he began descending the ladder when he “felt the ladder shift a little as [he] was coming down . .
. and [he] lost [his] balance. And then [he] missed a step and went down on [his] right knee” (id.
at 54). Plaintiff further testified that “if the ladder didn’t shift, [he] wouldn’t have missed the
step” (id. at 129-130). He did not know what caused the ladder to shift (id. at 55).
After the accident, plaintiff spoke with a Tishman representative who told plaintiff to
write down what happened, and he did so (id. at 63). He also filled out a J&L accident report (id.
at 65).
At his deposition, plaintiff was shown a copy of Tishman’s accident report, which
included his written statement (the Statement). He confirmed that he wrote and signed the
Statement (id. at 69), and that he did not state therein that the ladder had shifted. Rather, the
report reflects that he missed the last step of the ladder, which caused his knee to twist (NYSCEF
71).
Deposition Testimony of Tishman’s Safety Director (NYSCEF Doc. No. 68)
Tishman’s safety director for the Project testified that his duties included overseeing
safety compliance on residential construction sites, including the general oversite of the project.
Specifically, his duties included making sure that proper tools and equipment were available and
that workers were properly trained.
Tishman was hired by RCB3 as a construction manager for the Project, and it hired
subcontactors for the Project. However, he was unfamiliar with Automated, and did not know
that J&L was working on the project.
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Deposition of J&L’s Owner (NYSCEF Doc. No. 69)
J&L’s owner testified that his responsibilities included general operations of J&L, a
“communication installation company” – primarily installing fiberoptic wires for telephones and
intercoms. He was unaware of who owned the Premises and did not know whether J&L worked
for Tishman (id. at 31)., and he was also unfamiliar with JPR, though he was familiar with
Automated (id. at 31). Automated’s work includes installing devices such as HVAC controls (id.
at 33-34), and Automated hired J&L to install the devices, which included running wiring as
needed. At his deposition, the owner was shown a copy of the Automated/J&L Agreement, and
he confirmed that he signed it (id. at 43).
Tishman’s Accident Report (NYSCEF Doc. No. 71)
CR Safety, Tishman’s safety supervisor, prepared an accident report, dated December 28,
2018 (the Accident Report), which states that plaintiff injured his right knee on a ladder. It also
contained plaintiff’s signed written Statement, to wit:
Working on ladder drilling out a panel, missed the last step on the 8’ ladder causing my right knee to twist.
(NYSCEF Doc. No. 71).
The C3 Report (NYSCEF Doc. No. 56)
A C3 Report, signed by plaintiff on January 3, 2019, reflects that plaintiff was injured
when he was “[s]tepping down 8’ yellow A-frame ladder, installing 1 inch conduit” when the
“[l]adder move [sic] causing [him] to fall and miss the last step” (NYSCEF Doc. No. 56).
II. DISCUSSION
“‘[T]he proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact. Failure to make such prima facie showing requires denial
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of the motion, regardless of the sufficiency of the opposing papers’” (Smalls v AJI Indus., Inc.,
10 NY3d 733, 735 [2008]; quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]
[emphasis omitted]).
“Once this showing has been made, the burden shifts to the nonmoving party to produce
evidentiary proof in admissible form sufficient to establish the existence of material issues of fact
that require a trial for resolution” (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). If there
is any doubt as to the existence of a triable issue, the motion [for summary judgment] should be
denied” (Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]; citing
Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).
A. Plaintiff’s Common-Law Negligence and Labor Law §§ 200 and 241(6) Claims
Defendants move for summary judgment dismissing plaintiff’s common-law negligence
and Labor Law §§ 200 and 241(6) claims. As plaintiff does not contest the dismissal of these
claims, they are dismissed.
B. Plaintiff’s Labor Law § 240(1) Claim
Labor Law § 240(1), known as the Scaffold Law, provides as relevant that:
All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Labor Law § 240(1) “imposes a nondelegable duty on owners and contractors to provide
devices which shall be so constructed, placed and operated as to give proper protection to those
individuals performing the work” (Quiroz v Memorial Hosp. for Cancer & Allied Diseases, 202
AD3d 601, 604 [1st Dept 2022] [internal quotation marks and citations omitted]). It “‘was
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designed to prevent those types of accidents in which the scaffold . . . or other protective device
proved inadequate to shield the injured worker from harm directly flowing from the application
of the force of gravity to an object or person’” (John v Baharestani, 281 AD2d 114, 118 [1st
Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).
The absolute liability found within section 240 “is contingent upon the existence of a
hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety
device of the kind enumerated therein” (O'Brien v Port Auth. of N.Y. & N.J., 29 NY3d 27, 33
[2017] [internal quotation marks and citation omitted]; Narducci v Manhasset Bay Assoc., 96
NY2d 259, 267 [2001]). Accordingly, to prevail on a Labor Law § 240(1) claim, a plaintiff must
establish that the statute was violated, and that this violation was a proximate cause of the
plaintiff’s injuries (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]).
“‘Where a ladder is offered as a work-site safety device, it must be sufficient to provide
proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it
remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240(1)’”
(Hill v City of New York, 140 AD3d 568, 569 [1st Dept 2016]; quoting Montalvo v J. Petrocelli
Constr., Inc., 8 AD3d 173, 174 [1st Dept 2004]).
Here, plaintiff testified that the ladder that he was working on at the time of his accident
failed to protect him from falling, as it shifted underneath him. Accordingly, he has made his
prima facie showing of a violation of Labor Law § 240(1), and that the violation caused his
injuries (see Nunez v SY Prospect LLC, 226 AD3d 410 [1st Dept 2024] [plaintiff met prima facie
burden by proof that he fell when ladder abruptly shook and he was not given safety devices or
assistance to ensure that ladder was stable]; Goreczny v 16 Ct. St. Owner LLC, 110 AD3d 465
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[1st Dept 2013] [“Plaintiff's deposition is uncontradicted insofar as he testified that he was
injured when the unsecured ladder upon which he was working moved, causing him to fall.”]).
In opposition, defendants argue that there is a question of fact as to how the accident
occurred, as plaintiff did not indicate in the Accident Report that the ladder moved when he fell.
They argue that this omission creates a second, independent version of the accident wherein the
ladder did not shift or move, which would not give rise to a Labor Law violation (see e.g.
Romano v One City Block LLC, 187 AD3d 653, 654 [1st Dept 2020] [denying summary
judgment on section 240(1) cause of action where two credible theories of accident existed]).
“Where credible evidence reveals differing versions of the accident, one under which
defendants would be liable and another under which they would not, questions of fact exist
making summary judgment inappropriate” (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441,
442 [1st Dept 2012]; see also Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555, 556 [1st Dept
2009]).
Here, however, plaintiff’s testimony that he “felt the ladder shift a little as [he] was
coming down . . . [a]nd then [he] missed a step” is consistent with his prior Statement, wherein
he wrote that he “missed the last step” (see Ping Lin v 100 Wall St. Prop. L.L.C., 193 AD3d 650,
652 [1st Dept 2021] [“Plaintiff's statement to his supervisor that he fell because he lost his
balance is consistent with his more detailed testimony regarding how he lost his balance and fell
from the ladder after it moved”]).
Defendants argue that Ping Lin and similar cases are inapplicable because they involve
accident reports written by supervisors or coworkers, and not directly prepared by the injured
party. However, they cite no caselaw to support this position and their argument is unpersuasive.
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Moreover, defendants’ argument that plaintiff has not established that the ladder was
defective is immaterial (Rivera v 712 Fifth Ave. Owner LP, 229 AD3d 401 [1st Dept 2024]
[plaintiff not required to prove ladder was defective or that it fell]).
C. Defendants’ Contractual Indemnification Claims against J&L
“A party is entitled to full contractual indemnification provided that the ‘intention to
indemnify can be clearly implied from the language and purposes of the entire agreement and the
surrounding facts and circumstances’” (Karwowski v 1407 Broadway Real Estate, LLC, 160
AD3d 82, 87-88 [1st Dept 2018], quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d
774, 777 [1987]).
Agreements to indemnify must be strictly construed by their terms to avoid creating an
indemnification obligation that the parties did not intend (Needham & Co., LLC v UPHealth
Holdings, Inc., 212 AD3d 561, 561 [1st Dept 2023] [“a contract imposing an obligation to
indemnify must be strictly construed to avoid reading into it a duty which the parties did not
intend to be assumed.”] [internal quotation marks and citation omitted]).
“In contractual indemnification, the one seeking indemnity need only establish that it was
free from any negligence and was held liable solely by virtue of the statutory liability” (Correia v
Prof. Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; see also Lexington Ins. Co. v Kiska Dev.
Group LLC, 182 AD3d 462, 464 [1st Dept 2020] [denying summary judgment where indemnitee
“has not established that it was free from negligence”]). Further, unless the indemnification
clause explicitly requires a finding of negligence on behalf of the indemnitor, “[w]hether or not
the proposed indemnitor was negligent is a non-issue and irrelevant” (Correia, 259 AD2d at 65).
Initially, defendants’ contractual indemnification claim against J&L is predicated upon a
series of construction contracts – the Tishman/JPR Agreement, the JPR/Automated Agreement,
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and the Automated/J&L Agreement. Here, the JPR/Automated Agreement, which is between
two non-parties, is unauthenticated by any person with knowledge of the agreement. The only
individual questioned about it was J&L’s principal, who had no knowledge of it and had never
seen it prior to his deposition. That the JPR/Automated Agreement was provided to Tishman by
counsel for non-party Automated is insufficient to establish that the document transmitted was a
true and accurate copy of the JPR/Automated Agreement, as Automated’s counsel does not state
that he has any personal knowledge it.
Therefore, the JPR/Automated Agreement is not before the court in admissible form and
cannot be considered with respect to defendants’ summary judgment motions (Benedetto v Hyatt
Corp., 203 AD3d 505, 506 [1st Dept 2022] [citation omitted] [“As with any summary judgment
motion, the evidence submitted both in support of and in opposition must be tendered in
admissible form”]).
As defendants’ right to indemnity depends on the provisions of the JPR/Automated
Agreement, they have thus failed to establish prima facie entitlement to judgment in their favor
on their contractual indemnity claim.
As to J&L’s motion, J&L argues that, on its face, the Automated/J&L Agreement does
not contemplate providing indemnification to Tishman or RCB, relying on the following
indemnification provision:
To the fullest extent permitted by law, [J&L] . . . shall defend, indemnify and hold harmless the BUYER, CONTRACTOR . . . OWNER and their respective directors, trustees, officers, employees and agents, partner and subsidiary corporations from and against any liability, claim of liability . . . arising out of or resulting from performance of the Work . . . caused in whole or in part by the negligent acts or omissions of [J&L].
(NYSCEF Doc. No. 74).
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“BUYER” is identified as Automated; “OWNER” is identified as non-party “GID
Development, Inc.” (GID); “CONTRACTOR” is identified as JPR (id., at 1). Meanwhile, RCB3
and Tishman are not named or defined in the Automated/J&L Agreement. Further, the provision
does not include a requirement that the parties to the agreement indemnify entities required by
outside contracts.
Thus, on its face, the Automated/J&L agreement does not contemplate indemnity for
defendants, and as it is therefore not “unmistakably clear” regarding defendants’ indemnity, J&L
is not required to contractually indemnify defendants (Hooper Assoc. v AGS Computers, Inc., 74
NY2d 487, 491 [1989]). Therefore, J&L has established its prima facie entitlement to summary
judgment dismissing defendants’ contractual indemnification claim as against it (see
Manfredonia v Gateway School of New York, 150 AD3d 434, 435 [1st Dept 2017] [contractual
indemnity claim should have been dismissed as contract did not “express the type of clear and
unmistakable manifestation of intent to indemnity that is required.”]).
In opposition, defendants argue that GID and RCB3 are the same entity and that
reference to GID in the Automated/J&L Agreement should be understood to include and/or
incorporate RCB3 in that agreement’s indemnification provision. Defendants base this argument
on the Tishman/JPR Agreement, which defines “Owner” as “RCB3 Nominee LLC c/o GID
Development Group” (NYSCEF Doc. No. 95). However, defendants provide no evidence
establishing that GID and RCB3 are the same entity, nor do they cite any caselaw establishing
that a reference to one entity “c/o” a second entity means that the entities are, as a matter of law,
a single entity.
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Next, defendants argue that the Automated/J&L Agreement contains an incorporation
provision that incorporates the definitions and indemnification obligations from both the
Tishman/JPR Agreement and the JPR/Automated Agreement (NYSCEF Doc. No. 74).1
However, “[u]nder New York Law, incorporation clauses in a construction subcontract,
incorporating prime contract clauses by reference into a subcontract, bind the subcontractor only
as to prime contract provisions relating to the scope, quality, character and manner of the work to
be performed by the subcontractor” (Naupari v Murray, 163 AD3d 401, 402 [1st Dept 2018],
quoting Bussanich v 310 East 55th St. Tenants, 282 AD2d 243, 244 [1st Dept 2001]; see also
Higgins v TST 375 Hudson, L.L.C., 179 AD3d 508, 511 [1st Dept 2020] [“As the
indemnification provision in its favor in its subcontract with EMCOR does not relate to the
scope, quality, character or manner of the work, it is not incorporated into the EMCOR–OMC
sub-subcontract”]).
Given the foregoing, J&L has established its prima facie entitlement to summary
judgment dismissing defendants’ third-party contractual indemnification claims, and defendants
have not raised a question of fact in opposition.
1 The incorporation clause in the Automated/J&L Agreement provides:
PRIME CONTRACT: The Contract Documents include the contract between the Buyer and the Contractor or Owner (as the case may be) along with any Exhibits and Attachments thereto (the “Prime Contract). Subcontractor agrees to be bound by and comply with the terms of the Prime Contract and to assume towards the Buyer all the obligations and responsibilities that the BUYER assumes towards the CONTRACTOR and/or the OWNER, insofar as they are applicable to this Subcontract
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D. Defendants’ Remaining Third-Party Claims against J&L
As J&L sets forth meritorious grounds for dismissal of defendants’ third-party common-
law indemnity and failure to procure insurance claims, and as defendants do not address them or
otherwise deny that dismissal is warranted, the claims are dismissed.
III. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED, that plaintiff’s motion (sequence number 001), pursuant to CPLR 3212, for
summary judgment in his favor on his Labor Law § 240(1) claim as against defendants/third-
party plaintiffs RCB3 Nominee, LLC and Tishman Construction Company is granted; and it is
further
ORDERED, that Tishman and RCB’s motion (sequence number 002), pursuant to CPLR
3212, for summary judgment dismissing the complaint, and granting judgment in their favor on
their third-party contractual indemnification claim against third-party defendant J&L Electrical
and Communications Group (J&L) is granted to the extent that plaintiff’s common-law
negligence and Labor Law §§ 200 and 241(6) claims are severed and dismissed, and is otherwise
denied; and it is further
ORDERED, that J&L’s motion (sequence number 003), pursuant to CPLR 3212, for
summary judgment dismissing the third-party complaint is granted and the third-party complaint
is severed and dismissed, with costs and disbursements as taxed by the clerk of the court; and it
is further
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ORDERED that counsel for the parties shall appear for a trial scheduling/settlement
conference on November 20, 2024, at 9:30 a.m. at 71 Thomas Street, Room 305, New York,
New York.
8/23/2024 DATE DAVID B. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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