Fromel v W2005/Hines W. Fifty-Third Realty, LLC 2024 NY Slip Op 31233(U) April 10, 2024 Supreme Court, New York County Docket Number: Index No. 158914/2018 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. 158914/2018 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 04/10/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 158914/2018 JAMES FROMEL, MOTION DATE 09/29/2023 Plaintiff, MOTION SEQ. NO. 003 004 -v- W2005/HINES WEST FIFTY-THIRD REALTY, LLC, LENDLEASE (US) CONSTRUCTION LMB, INC., ISLAND DECISION + ORDER ON ACOUSTICS OF NEW YORK, INC., ISLAND ACOUSTICS, LLC, MOTION
Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 120, 121 were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 004) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 117, 118, 119, 122 were read on this motion to/for JUDGMENT - SUMMARY .
In this Labor Law action, defendants/third-party plaintiffs W2005/Hines West Fifth-Third
Realty, LLC (Realty) and Lendlease (US) Construction LMB, Inc. (Lendlease) (collectively,
defendants) move pursuant to CPLR 3212 for an order granting them summary judgment on their
third-party claim against third-party defendant Spieler & Ricca Electrical Co., Inc. (mot. seq.
003).1 Spieler opposes.
By notice of motion, plaintiff moves pursuant to CPLR 3212 for an order granting him
partial summary judgment on liability against defendants (mot. seq. 004). Defendants oppose.
1 Plaintiff has discontinued his claims against Acoustics (NYSCEF 94). 158914/2018 FROMEL, JAMES vs. W2005/HINES WEST FIFTY-THIRD Page 1 of 9 Motion No. 003 004
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I. PERTINENT BACKGROUND
As set forth in the parties’ statements of material facts, the following facts are
undisputed:
At the time of plaintiff’s accident, he was employed by Spieler as an electrician, and was
supervised solely by his two foremen; none of defendants’ employees directed or instructed him
as to his work. The construction project at issue was located at 53 West 53rd Street in Manhattan
(NYSCEF 83, 108).
At his deposition, plaintiff testified that Realty owned the building at issue, while
Lendlease was the general contractor. On August 16, 2016, plaintiff and other Spieler
employees were working on the eighth floor of the building, which was being used as a
“stripping floor,” which was where workers were taking plywood down to start moving it up to
the next floor. There were no walls around the floor but there was an exterior wraparound to
keep debris from falling off the building. Plaintiff described the floor as messy and containing a
lot of debris (NYSCEF 91).
The ninth floor had already had the concrete floor slab poured, and some workers were
up there stripping plywood forms. Plaintiff and his coworkers were working on the eighth floor
on electrical work while other trades were ripping down the plywood; they did not want to be
near the workers stripping the plywood from support beams (id.).
Plaintiff and his apprentice were running a temporary line to the eighth floor to feed
electricity to upper floors for future work. They were near the opening in the middle of the floor
where the interior crane was located. Barriers had been placed around the crane opening, which
were made out of wood with orange netting around them. The barriers measured only four or
five feet high. There were also some cutouts in the ceiling above them (id.).
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As he talked to the apprentice, debris hit him and caused him to fall down. The debris
consisted of a ten-foot long four-by-four support beam, which hit him across the back of his
head. When plaintiff looked around to see what happened, he saw a worker standing on a
landing and holding other similar beams, and the worker looked at plaintiff and apologized,
saying that he had been carrying too many beams. The landing was behind plaintiff,
approximately six or seven feet high, and connected to stairs leading from the ground of the
eighth floor to the landing. He believed that the worker was employed by the site’s concrete
contractor (id.).
II. DEFENDANTS’ MOTION
Defendants rely on the contract between Lendlease and Spieler to argue that they are
entitled to judgment on their third-party claim for contractual indemnity against Spieler, as the
relevant lease provision requires Spieler to indemnify Lendlease for any liability “caused by,
arising out of, resulting from or occurring in connection with the performance of the work.”
They observe that it is undisputed that the contract was in effect on the date of plaintiff’s
accident and that plaintiff was working for Spieler when the accident occurred, thus triggering
the applicable provision, which provides for both defense and indemnity. Defendants also deny
that they were negligent in any way related to the accident, as they did not supervise or control
plaintiff’s work and did not perform any construction work themselves (NYSCEF 84).
Spieler asserts that defendants are not entitled to summary judgment on any of their third-
party claims. However, as it appears that defendants are seeking judgment solely on the
contractual indemnity claim, it is the only claim addressed herein. Spieler asserts that there is a
triable issue as to whether plaintiff was performing work for Spieler when he was injured, as he
was not performing electrical work at the time and none of his electrical work caused or
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contributed to the accident. It also maintains that the provision violates General Obligations Law
(GOL) 5-322.1, thereby rendering it null and void, and that in any event, defendants have not
shown themselves to be free of negligence, as they were responsible for overall site safety and
maintenance and could have stopped unsafe work (NYSCEF 107).
As the pertinent language provides that Spieler must indemnify Lendlease “to the fullest
extent of the law,” against any liability “caused by, arising out of, resulting from or occurring in
connection with the performance of the work,” and as it is undisputed that plaintiff’s accident
occurred while he was performing work for Spieler at the construction site, defendants have
established that the provision is applicable. Spieler’s arguments that the provision was not
triggered as plaintiff was not performing electrical work when he was injured or that his work
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Fromel v W2005/Hines W. Fifty-Third Realty, LLC 2024 NY Slip Op 31233(U) April 10, 2024 Supreme Court, New York County Docket Number: Index No. 158914/2018 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. 158914/2018 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 04/10/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 158914/2018 JAMES FROMEL, MOTION DATE 09/29/2023 Plaintiff, MOTION SEQ. NO. 003 004 -v- W2005/HINES WEST FIFTY-THIRD REALTY, LLC, LENDLEASE (US) CONSTRUCTION LMB, INC., ISLAND DECISION + ORDER ON ACOUSTICS OF NEW YORK, INC., ISLAND ACOUSTICS, LLC, MOTION
Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 120, 121 were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 004) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 117, 118, 119, 122 were read on this motion to/for JUDGMENT - SUMMARY .
In this Labor Law action, defendants/third-party plaintiffs W2005/Hines West Fifth-Third
Realty, LLC (Realty) and Lendlease (US) Construction LMB, Inc. (Lendlease) (collectively,
defendants) move pursuant to CPLR 3212 for an order granting them summary judgment on their
third-party claim against third-party defendant Spieler & Ricca Electrical Co., Inc. (mot. seq.
003).1 Spieler opposes.
By notice of motion, plaintiff moves pursuant to CPLR 3212 for an order granting him
partial summary judgment on liability against defendants (mot. seq. 004). Defendants oppose.
1 Plaintiff has discontinued his claims against Acoustics (NYSCEF 94). 158914/2018 FROMEL, JAMES vs. W2005/HINES WEST FIFTY-THIRD Page 1 of 9 Motion No. 003 004
1 of 9 [* 1] INDEX NO. 158914/2018 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 04/10/2024
I. PERTINENT BACKGROUND
As set forth in the parties’ statements of material facts, the following facts are
undisputed:
At the time of plaintiff’s accident, he was employed by Spieler as an electrician, and was
supervised solely by his two foremen; none of defendants’ employees directed or instructed him
as to his work. The construction project at issue was located at 53 West 53rd Street in Manhattan
(NYSCEF 83, 108).
At his deposition, plaintiff testified that Realty owned the building at issue, while
Lendlease was the general contractor. On August 16, 2016, plaintiff and other Spieler
employees were working on the eighth floor of the building, which was being used as a
“stripping floor,” which was where workers were taking plywood down to start moving it up to
the next floor. There were no walls around the floor but there was an exterior wraparound to
keep debris from falling off the building. Plaintiff described the floor as messy and containing a
lot of debris (NYSCEF 91).
The ninth floor had already had the concrete floor slab poured, and some workers were
up there stripping plywood forms. Plaintiff and his coworkers were working on the eighth floor
on electrical work while other trades were ripping down the plywood; they did not want to be
near the workers stripping the plywood from support beams (id.).
Plaintiff and his apprentice were running a temporary line to the eighth floor to feed
electricity to upper floors for future work. They were near the opening in the middle of the floor
where the interior crane was located. Barriers had been placed around the crane opening, which
were made out of wood with orange netting around them. The barriers measured only four or
five feet high. There were also some cutouts in the ceiling above them (id.).
158914/2018 FROMEL, JAMES vs. W2005/HINES WEST FIFTY-THIRD Page 2 of 9 Motion No. 003 004
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As he talked to the apprentice, debris hit him and caused him to fall down. The debris
consisted of a ten-foot long four-by-four support beam, which hit him across the back of his
head. When plaintiff looked around to see what happened, he saw a worker standing on a
landing and holding other similar beams, and the worker looked at plaintiff and apologized,
saying that he had been carrying too many beams. The landing was behind plaintiff,
approximately six or seven feet high, and connected to stairs leading from the ground of the
eighth floor to the landing. He believed that the worker was employed by the site’s concrete
contractor (id.).
II. DEFENDANTS’ MOTION
Defendants rely on the contract between Lendlease and Spieler to argue that they are
entitled to judgment on their third-party claim for contractual indemnity against Spieler, as the
relevant lease provision requires Spieler to indemnify Lendlease for any liability “caused by,
arising out of, resulting from or occurring in connection with the performance of the work.”
They observe that it is undisputed that the contract was in effect on the date of plaintiff’s
accident and that plaintiff was working for Spieler when the accident occurred, thus triggering
the applicable provision, which provides for both defense and indemnity. Defendants also deny
that they were negligent in any way related to the accident, as they did not supervise or control
plaintiff’s work and did not perform any construction work themselves (NYSCEF 84).
Spieler asserts that defendants are not entitled to summary judgment on any of their third-
party claims. However, as it appears that defendants are seeking judgment solely on the
contractual indemnity claim, it is the only claim addressed herein. Spieler asserts that there is a
triable issue as to whether plaintiff was performing work for Spieler when he was injured, as he
was not performing electrical work at the time and none of his electrical work caused or
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contributed to the accident. It also maintains that the provision violates General Obligations Law
(GOL) 5-322.1, thereby rendering it null and void, and that in any event, defendants have not
shown themselves to be free of negligence, as they were responsible for overall site safety and
maintenance and could have stopped unsafe work (NYSCEF 107).
As the pertinent language provides that Spieler must indemnify Lendlease “to the fullest
extent of the law,” against any liability “caused by, arising out of, resulting from or occurring in
connection with the performance of the work,” and as it is undisputed that plaintiff’s accident
occurred while he was performing work for Spieler at the construction site, defendants have
established that the provision is applicable. Spieler’s arguments that the provision was not
triggered as plaintiff was not performing electrical work when he was injured or that his work
did not cause or contribute to causing the accident are irrelevant (see Torres-Quito v 1711 LLC,
___ AD3d ___, 2024 NY Slip Op 01279 [1st Dept 2024] [as provision required indemnity
against injuries “arising out of or resulting from (subcontractor’s) performance of the work,”
subcontractor required to indemnify defendants for injuries suffered by plaintiff while working
for subcontractor on project]).
The provision is not barred by GOL 5-322.1 (see Lemache v Elk Manhasset LLC, 222
AD3d 591 [1st Dept 2023] [indemnity agreement complied with GOL 5-322.1 as it provided
indemnity “to the fullest extent permitted by law”]), and there is no basis for holding defendants
liable as the fact that they were responsible for overall site safety and could have stopped unsafe
work is insufficient (id. at 593 [building owner entitled to indemnity from subcontractor as
plaintiff’s injuries arose out of subcontractor’s operations and owner not at fault because it did
not control or supervise plaintiff’s work or provide tools or equipment for the work]; Torres-
Quito, 2024 NY Slip Op 01279 [defendant entitled to dismissal as evidence showing that it had
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site safety or general supervisory authority, without more, insufficient to impose Labor Law
liability]).
Accordingly, defendants establish that Spieler must defend and indemnify them, and
Spieler raises no triable issue in opposition.
III. PLAINTIFF’S MOTION
Plaintiff moves for summary judgment on his Labor Law 240(1) and 241(6) claims based
on violations of Industrial Code sections 23-1.7(a)(1), 23-1.7(a)(2), and 23-3.3(g). As to Labor
Law 240(1), he argues that defendants violated the statute by the fact that plaintiff was struck by
a falling beam, which was not properly supported, braced, or shored. As to his Labor Law
241(6) claim, plaintiff contends that defendants violated the above Industrial Code sections by
failing to provide protection from a falling object (NYSCEF 81).
Defendants argue plaintiff previously hurt his back in 2011 and that therefore there is an
issue of fact as to whether he is using the instant accident “to collect on a prior condition.” They
also claim that plaintiff previously provided an affidavit describing the accident that is
inconsistent with the version he sets forth here, with the affidavit version omitting the fact that
plaintiff was hit from above, and they observe that plaintiff continued working the day he was
injured and for an additional two weeks thereafter, thus raising an issue as to his credibility and
requiring denial of the motion. Defendants further allege that the sole eyewitness to the accident
is a convicted felon, and that a jury must rule on plaintiff’s credibility (NYSCEF 118).
A. Labor Law 240(1)
“Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and
contractors for failing to provide safety devices necessary for workers subjected to elevation-
related risks in circumstances specified by the statute” (Soto v J. Crew Inc., 21 NY3d 562, 566
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[2013] [citations omitted]; see Healy v EST Downtown, LLC, 38 NY3d 998, 999 [2022]). A
plaintiff seeking summary judgment on the issue of liability “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, 433 [2015]; see Villanueva v 114 Fifth Ave. Assoc. LLC, 162 AD3d
404, 405 [1st Dept 2018]).
In a falling object case, the plaintiff must show that the object that fell was being hoisted
or secured and that it fell because of an absence or inadequacy of a safety device of the kind
enumerated in the statute (Narducci v Manhasset Bay Assocs., 96 NY2d 259 [2001]).
While plaintiff’s prior affidavit does not mention that the beam fell from above him, it is
otherwise consistent with his story that another worker hit him with the beam from behind and
apologized for doing so (NYSCEF 119). Thus, the two versions offered by plaintiff for the
accident are not inconsistent (see Rodas-Garcia v NYC Utd. LLC, ___ AD3d ___, 2024 NY Slip
Op 01687 [1st Dept 2024] [statement that plaintiff lost balance and fell does not contradict his
consistent testimony that he fell because ladder suddenly moved]).
Moreover, plaintiff’s account of the accident is consistent with that of his apprentice
(NYSCEF 77), and the fact that the apprentice was convicted of a felony does not render his
testimony inherently unreliable (see 58A NY Jur 2d, Evidence and Witnesses 947 [2023]
[witness’s conviction of crime may be proved to question weight of witness’s testimony]).
However, plaintiff claims that the beam that hit him was dropped by another worker who
was carrying too many beams at one time. There is no evidence that the beams were objects that
required securing for the undertaking or that any safety device was required to transport the
beams, or that the absence of a necessary hoisting or securing device caused the worker to lose
his grip on the beam that fell (see eg, Henriquez v Grant, 186 AD3d 577 [2d Dept 2020]
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[plaintiff failed to show that plank which hit his head fell because of absence or inadequacy of
safety device]; Schwab v A.J. Martini, Inc., 288 AD2d654 [3d Dept 2001] [injury not covered as
as it was caused by coworker handing plaintiff heavy object, which is ordinary and usual
construction workplace risk]).
The possibility of an object slipping from a coworker’s arms or being dropped by another
worker is a general hazard of a construction workplace, and not subject to Labor Law 240(1) (see
Narducci, 96 NY2d at 268-269 [risk of falling glass was general hazard of workplace, and not
one subject to Labor Law 240(1) liability]; Shaheen v Hueber-Breuer Constr. Co., Inc., 4 AD3d
761 [4th Dept 2004] [where plaintiff was hurt by rope that was pushed off scaffold above him by
coworker, accident not covered under Labor Law 240(1) as rope was not object being hoisted or
load that required securing at time it fell]; Adamczyk v Hillview Estates Dev. Corp., 226 AD2d
1049 [4th Dept 1996] [plaintiff’s accident involved usual and ordinary dangers of construction
site as he was injured when coworker slipped while handing plaintiff pipe, dropping pipe, and
plaintiff was injured after he tried to catch it]; Goodleaf v Tzivos Hashem, Inc., 19 Misc3d
1104[A] [Sup Ct, Kings County 2008] [sledgehammer that hit plaintiff after falling from
coworker’s hands was not being hoisted or secured when it fell, and thus was general workplace
hazard]).
Plaintiff thus fails to establish that his accident was caused by defendants’ violation of
Labor Law 240(1).
B. Labor Law 241(6)
Labor Law § 241(6) imposes a nondelegable duty on premises owners and contractors at
construction sites to provide reasonable and adequate safety to workers. To establish a claim
under the statute, a plaintiff must show that a specific, applicable Industrial Code regulation was
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violated, and that the violation caused the complained-of injury (Cappabianca v Skanska USA
Bldg. Inc., 99 AD3d 139, 146, 950 N.Y.S.2d 35 [1st Dept 2012] [internal citations omitted]).
Section 23-1.7 of the Industrial Code, entitled “Protection from General Hazards,”
provides that: “(a). Overhead hazards. (1) every place where persons are required to work or
pass that is normally exposed to falling material or objects shall be provided with suitable
overhead protection . . . (2) where persons are lawfully frequenting areas exposed to falling
material or objects but wherein employees are not required to work or pass, such exposed areas
shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to
prevent inadvertent entry in such areas.”
In the first instance, the two subsections are apparently read in the disjunctive, or, more
specifically, subsection (a)(1) deals with places where persons are required to work or pass,
while (a)(2) deals with places where employees are not required to work or pass. It thus does not
appear that plaintiff can claim a violation under each subsection related to the same accident.
However, and in any event, plaintiff provides no evidence that the eighth floor of the site was an
area exposed to falling material or objects (see Torres-Quito v 1711 LLC, ___ AD3d ___, 2024
NY Slip Op 01279 [1st Dept 2024] [no evidence that area where plaintiff was working was
normally exposed to falling objects]; Crichigno v Pacific Park 550 Vanderbilt, LLC, 186 AD3d
664 [2d Dept 2020] [where plaintiff was struck by beam that had just been stripped from ceiling
by another worker, plaintiff failed to show that he was working in area normally exposed to
falling material or objects]).
For the same reason, plaintiff does not establish that defendants violated 12 NYCRR 23-
3.3(g), which pertains to “Demolition by Hand,” and provides that every floor or area “that is
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subject to the hazard of falling debris or materials from above” shall be protected (id. at 665
[plaintiff did not show that he was subject to falling debris from above]).
Plaintiff thus fails to demonstrate that defendants violated Labor Law 241(6).
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendants/third-party plaintiffs’ motion for summary judgment on their
third-party claim against third-party defendant Spieler & Ricca Electrical Co., Inc. (mot. seq.
003) is granted, and Spieler must defend and indemnify defendants in connection to plaintiff’s
injuries in this lawsuit; it is further
ORDERED, that plaintiff’s motion for partial summary judgment on liability (mot. seq.
004) is denied in its entirety; and it is further
ORDERED, that the parties appear for a settlement/trial scheduling conference with
Justice Cohen on August 7, 2024 at 9:30 am, at 71 Thomas Street, New York, New York.
4/10/2024 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
158914/2018 FROMEL, JAMES vs. W2005/HINES WEST FIFTY-THIRD Page 9 of 9 Motion No. 003 004
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