The opinion
Scanlon v South St. Seaport LP
2024 NY Slip Op 33470(U)
October 1, 2024
Supreme Court, New York County
Docket Number: Index No. 155345/2020
Judge: Nicholas W. Moyne
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.
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. NICHOLAS W. MOYNE PART 41M
Justice
--------------------------------------------------------------------------------X INDEX NO. 155345/2020
MICHAEL SCANLON,
05/02/2023,
Plaintiff, 05/17/2023,
05/18/2023,
05/17/2023,
- V-
MOTION DATE 05/17/2023
SOUTH STREET SEAPORT LIMITED PARTNERSHIP,
PLAZA CONSTRUCTION, LLC,SEAPORT MANAGEMENT 003 004 005
DEVELOPMENT COMPANY, LLC, MOTION SEQ. NO. -~00.:....:6'----0=----=0c..:.6~_
Defendant. DECISION + ORDER ON
MOTION
-------------------X
SOUTH STREET SEAPORT LIMITED PARTNERSHIP, Third-Party
SEAPORT MANAGEMENT DEVELOPMENT COMPANY, LLC, Index No. 595494/2022
Plaintiff,
-against-
KENVIL UNITED CORP., OCEAN STEEL & CONSTRUCTION
LTD
Defendant.
-------------------X
PLAZA CONSTRUCTION, LLC Second Third-Party
Index No. 595494/2022
Plaintiff,
-against-
KENVIL UNITED CORP., OCEAN STEEL & CONSTRUCTION
LTD
Defendant.
-------------------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, 163
were read on this motion to/for JUDGMENT-SUMMARY
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The following e-filed documents, listed by NYSCEF document number (Motion 004) 115, 116, 117, 118,
119,120,121,122, 123,124,125,126,127,128,129,130,131,132,133,134,135,136,137,138,139,
165, 167, 168, 169, 195
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
The following e-filed documents, listed by NYSCEF document number (Motion 005) 140, 141, 142, 143,
144,145, 146,147,148,149,150,151,152,153,154,155,156,157,158,159,160,161,166,170,171,
172, 176, 183, 186, 187, 188, 189, 193, 194, 196, 197, 198
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 006) 97, 98, 99, 100, 101,
102,103,104,105,106,107,108,109,110,111,112,113,114,164,173,174,175,177,178,179,180,
181, 182, 184, 190, 191, 192
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 006) 97, 98, 99, 100, 101,
102,103,104,105,106,107,108,109,110,111,112,113,114,164,173,174,175,177,178,179, 180,
181,182,184,190,191,192
were read on this motion to/for PARTIAL SUMMARY JUDGMENT
Upon the foregoing documents, it is
Motion sequences 003-006 are consolidated herein for decision. This action
stems from an accident at a construction site that allegedly occurred on July 16, 2019.
The plaintiff was an ironworker assigned to work on a project involving the construction
of a building at the South Street Seaport Pier 17. The subject premises is owned by
defendant South Street Seaport Limited Partnership and managed by defendant
Seaport Management Development Company. The latter retained Plaza Construction
("Plaza") as the construction manager for the project. Plaza retained the services of
Ocean Steel & Construction Ltd. ("Ocean") and assigned Ocean the task of fabricating
and installing structural steel for the building. Ocean fabricated the steel but sub-
contracted the installation to the plaintiffs employer, third-party defendant Kenvil United
Corp. ("Kenvil").
At the time of his accident, the plaintiff was under the supervision of George
Marcinkevich, a foreman employed by Kenvil. At the time of his accident, the plaintiff
claims that he and a co-worker had been working on the first floor of the building. They
were responsible for "bolting up," i.e., the steel members were initially connected with
temporary bolts, so they were tasked with removing the temporary bolts and replacing
them with permanent bolts. Prior to the accident, the plaintiff had accessed the first-floor
work area via an orange extension ladder installed at the front of the building.
The plaintiff claims that prior to the accident he went down to the ground level in
order to locate some bolts that he needed for the work he was doing. Plaintiff found the
bolts and placed them in his tool bag and began traveling back to his work area. In
order to get back to the first-floor work area, the plaintiff used a blue extension ladder.
The blue extension ladder had previously been resting upright against a concreate floor
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when the plaintiff found it and began using it. The plaintiff described the blue ladder as
the top half of an extension ladder that had been separated from the bottom half.
According to the plaintiff, the bottom half of the blue extension ladder was in use at a
different section of the job site, but it was close to the section of the ladder that the
plaintiff was using when he was injured. The half-portion of the blue extension ladder
used by the plaintiff was ten feet long and had about ten rungs. The base of the
extension ladder half rested on a flat, poured concrete surface that was clean and free
of any debris or liquids. (Ex. I, 39 :21-23, 102: 16-103: 5). The base of the extension
ladder half was three feet from the concrete wall, the top was leaning against the flat
surface of the wall and two rungs extended beyond the deck at the top of the ladder.
(Ex. I, 39:18-20, 105:2-17, 111 :17-112:2). The blue extension ladder half did not have
any rubber feet on the bottom to prevent slippage and was not secured or tied-off in any
manner that would prevent it from sliding or slipping on the concreate floor.
As the plaintiff ascended the ladder, the ladder kicked or moved backwards
causing the plaintiff to fall forward and hit his head against the concrete wall that the
ladder was leaning against. The plaintiff claims that he fell to the ground and the ladder
landed on his stomach. There were no witnesses to the accident. Following the
accident, the plaintiffs co-worker Christopher Hald, who testified as a non-party, went to
look for the plaintiff and noticed the ladder that the plaintiff was using at the time of the
accident upright, but clearly out of position, askew. The ladder was not tied off and was
straight up against the concrete wall. Before Mr. Hald could descend the ladder, he
needed to move the ladder on an angle so that it was safe for him to descend. He
testified that as he descended the ladder, he noticed that the ladder was wobbly and
lacked any foundation or feet.
The plaintiff commenced an action against South Street Seaport Limited
Partnership by service of a summons and com plaint dated July 17, 2020. Issue was
subsequently joined by the defendants South Street Seaport Limited Partnership's
answer dated August 27, 2020. Thereafter, plaintiff commenced a separate second
action by filing a Summons and Complaint against Plaza Construction and Seaport
Management Development Company. Issue was joined by service of an answer by
Seaport Management Development Company and Plaza Construction in the respective
actions. The actions were later consolidated. Defendants, South Street Limited
Partnership and Seaport Management Development Company (hereinafter "Seaport").
Thereafter, Plaza Construction, LLC., commenced a second third party action against
Kenvil United Corp. and Ocean Steel & Construction LTD ..
In motion sequence 003, Kenvil moves for summary judgment and a dismissal of
all third-party claims and cross-claims against Kenvil for common-law indemnity and/or
contribution. In motion sequence 004, Ocean moves for summary judgment on its
cross-claim for contractual indemnification against Kenvil. In motion sequence 005,
Seaport moves for summary judgment and dismissing those causes of action in
plaintiffs complaint which allege negligence and a violation of Section 200 of the New
York Labor Law and granting summary judgment to Seaport on their claims for
contractual indemnification against Plaza, Ocean Steel and Kenvil. Plaza cross-moves
for an order granting it summary judgment and dismissing plaintiff's claims against
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Plaza for negligence and a violation of Labor Law 200 and granting Plaza summary
judgment on its claims for contractual indemnification against Ocean Steel and Kenvil.
In motion sequence 006, plaintiff moves for partial summary judgment motion for partial
summary judgment on plaintiffs Labor Law §240(1) cause of action against Seaport and
Plaza.
Motion Sequence 003
In motion sequence 003, Kenvil moves for summary judgment and a dismissal of
all third-party claims and cross-claims against it for common-law indemnity and/or
contribution. This motion is unopposed and is granted. Kenvil was the plaintiff's
employer and claims for common-law indemnification and/or contribution against Kenvil
are barred by the exclusive provisions of New York's Workers' Compensation Law §11
unless the injured plaintiff sustained a "grave injury" within the meaning of the statute or
controlllng case law. There is no indication in the record that the plaintiff sustained a
qualifying grave injury within the meaning of the statute or controlling case law.
Accordingly, the motion is granted and all third-party claims and cross-claims against
Kenvil for common-law indemnity an/or contribution are dismissed.
Motion Sequence 004
In motion sequence 004, Ocean Moves for summary judgment on its cross-claim
for contractual indemnification against Kenvil.
By contract, dated April 24, 2018, between Ocean and Kenvil, Kenvil agreed to
erect structural steel manufactured by Ocean for the subject project. William Gates,
Vice President and General Manager of Ocean, authenticated the contract during his
deposition. (See Contract, Exhibit "T" to Affirmation in Support of Motion: See Exhibit
"R" to Affirmation in Support of Motion, pp. 20 - 23, lines 14-22). The contract provides,
in relevant part, at Paragraph 4M:
To the fullest extent permitted by law, Erector ("Kenvil "), shall defend, indemnify
and save harmless Fabricator ("Ocean ") ... from and against any claims, costs,
expenses, damages, suits, fines, penalties and/or liabilities (including attorneys'
fees and costs and attorneys' fees incurred in enforcing Erector's obligations set
forth herein), caused by, arising out of, resulting from, or occurring in connection
with (i) the Work, whether or not caused in part by the negligence or other fault of
a party indemnified hereunder; (ii) any actions or suits concerning any of the
foregoing in which any of the lndemnitees are made a party defendant: provided,
however, Erector's duties set forth herein shall not arise lf any such claim, cost,
expense, damage, suit, penalty and/or liability is wholly caused by the sole
negligence of a party indemnified hereunder.
It is undlsputed that the plaintiff was working for Kenvil at the time of his accident.
His job involved the removal and/or swapping out of bolts. The contract cited above
clearly obligates Kenvil to indemnify Ocean for any claims arising out of the work
contemplated in the contract between Ocean and Kenvil. Ocean maintains that the
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accident comes within the parameters of the broadly worded indemnification clause
between Ocean and Kenvil. Ocean argues that it is clear that the plaintiffs injury arose
from the "negligent acts or omissions" of Kenvil and alleges that plaintiff was a Kenvil
employee who was permitted by Kenvil to use half of an extension ladder that had been
broken down into two pieces, in order to do his work. Furthermore, while the
indemnification clause cannot serve to indemnify Ocean for its own negligence, there is
no evidence that Ocean was negligent. Ocean did not supeNise or control the plaintiff's
work and there is no evidence in the record which suggest that Ocean had anything to
do with the extension ladder allegedly used by the plaintiff during his accident.
In opposing the motion, Kenvil argues that Ocean has failed to sufficiently
demonstrate a causal connection between the plaintiff's injuries and Kenvil's work (see
Worth Constr. Co., Inc. v Admiral Ins. Co., 10 NY3d 411, 415 [2008]; Vazquez v City of
New York, 200 AD3d 482 [1st Dept 2021]; Baez v R&R Contr. Inc., 287 AD2d 351, 351-
352 [1st Dept 2001]). Here, Kenvil insists that it did not own the ladder involved in the
alleged incident, did not separate or set up the ladder and did not direct plaintiff to use
the ladder. Kenvil also claims that the plaintiff was not actually involved in erecting steel
at the time of his accident and was merely using the subject ladder to gain access to the
ground floor of the jobsite. Kenvil's only connection to the incident is that Mr. Scanlon
was a Kenvil employee. Kenvil believes that what it terms as its employee's mere
presence on the job site and/or his performance of routine duties does not trigger the
indemnification clause.
The problem for Kenvil is that the evidence clearly shows that the plaintiff is
alleging that he was doing far more than just merely being present on a job site and
performing routine duties. The plaintiff specifically testified at his deposition that he was
bolting steel on the first-floor jobsite and needed the ladder to access that jobsite.
Plaintiff had his tools and bolts in his tool kit when he climbed up the ladder and was
ready to commence work. These facts are sufficient to trigger the indemnification
clause regardless of who owned the ladder that the plaintiff allegedly fell from. It is clear
from the record that the plaintiff's injuries did arise out of the work being performed by
Kenvil, and therefore the indemnification clause in the contract between Ocean and
Kenvil is triggered {see Cresser v 345 Park Avenue, L.P., 193 AD3d 526, 527 [1st Dept
2021]; Alarcon v UCAN White Plains Housing Development Fund Corp., 100 AD3d 431,
432 [1st Dept 2012]; Masciotta v Morse Diesel International, Inc., 303 AD2d 309 [1st
Dept 2003]). Although Ocean argues that Kenvil's negligence has been established, it
is not necessary for the court to find Kenvil negligent in order to grant Ocean summary
judgment on its contractual indemnification claim given that the plaintiff's claims clearly
arise from the work contemplated in the contract between Ocean and Kenvil.
Accordingly, Ocean's motion for summary judgment on its cross-claim for contractual
indemnification against Kenvil is granted.
Motion Sequence 005
In motion sequence 005, Seaport moves for summary judgment and an order
dismissing those causes of action in plaintiff's complaint which allege negligence and a
violation of Section 200 of the New York Labor Law and granting summary judgment to
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Seaport on their claims for contractual indemnification against Plaza, Ocean Steel and
Kenvil. Plaza cross-moves for an order granting it summary judgment and dismissing
plaintiff's claims against Plaza for negligence and a violation of Labor Law 200 and
granting Plaza summary judgment on its claims for contractual indemnification against
Ocean Steel and Kenvil.
Seaport argues that the plaintiff's claims for common law negligence and/or
violations of Section 200 of the Labor Law should be dismissed as against Seaport
because the plaintiff's alleged accident arose from the means and methods of the
plaintiff's work and Seaport did not supervise, direct or control the plaintiff's work.
Where, as here, a construction accident arises out of a dangerous condition on the site,
as opposed to the means and methods employed to perform the work, liability under
Labor Law§ 200 or for common law negligence may be imposed on an owner or
contractor only when the owner or contractor either exercises direct supervision or
control over the injury-producing work or had actual or constructive notice of the unsafe
condition (see Higgins v 1790 Broadway Assoc., 261 AD2d 223,225 [1 st Dept 1999]).
The evidence in the record establishes that Seaport did not exercise supervision or
control over the plaintiff's work and there is nothing in the record that suggests that
Seaport owned the subject ladder or was aware that it was unsecured and/or not safe to
use. Plaintiff's supervisor was George Marcinkevich, an employee of Kenvil. Kenvil
was the installer of the steel fabricated by Ocean. Kenvil supervisors gave the plaintiff
his daily assignments, directed his work and provided him with the means and methods
to get the work done. There is no evidence that Seaport had any role in instructing
Kenvil employees how to perform their work, including which ladders to use.
Accordingly, the Seaport defendants are entitled to summary judgment and a dismissal
of plaintiff's causes of action alleging common law negligence and/or violations of Labor
Law 200 against Seaport.
Seaport also claims that it is entitled to contractual indemnification from
codefendant Plaza and third-party defendants Ocean and Kenvil. The injury arose out
of the work being performed by Plaza, Ocean and Kenvil and the language of their
respective contracts requires them each to indemnify Seaport. Only Kenvil and Ocean
oppose Seaport's motion. Kenvil argues, as it did in opposition to Ocean's summary
judgment motion, that the moving party has failed to demonstrate a causal connection
between the plaintiff's injuries and Kenvil's work. For the reasons set forth above, that
argument is unavailing. Ocean maintains that the subject indemnification contract
between Seaport and Ocean requires a showing that Ocean was negligent in order to
require that Ocean indemnify Seaport. That interpretation is based on a strained
reading of the indemnification clause which is in reality very broad. Article 9 of the
relevant Subcontract states, in relevant part:
9.1 To the extent permitted by law, Subcontractor (Ocean Steel) shall indemnify,
defend, save and hold Owner (Seaport Defendants), Plaza, Plaza's Safety
Consulting Firm, their respective partners, officers, employees and anyone else
acting for or on behalf of any of them (herein collectively called "lndemnitees)
harmless from and against all liability, damage, loss, claims, demands and
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actions of any nature whatsoever to the extent caused by or claimed to be
caused by:
9.1.1 The performance of Work by the Subcontractor, or any of its sub-
subcontractors, any act or omission of any of the foregoing; ..... .
9.1.3 The use, misuse, erection, maintenance, operation or failure of any
machinery or equipment (including, but not limited to, scaffolds, derricks, ladders,
hoists, rigging supports, etc.) regardless of whether such machinery or
equipment was furnished, rented or loaned by the Owner or Plaza or their
officers, employees, agents, servants or others, to Subcontractor;
There is nothing in the above cited language which requires a showing of
negligence on the part of Ocean. By the clear terms of the contract, Ocean is required
to indemnify Seaport for any claims caused by or claimed to be caused by the
performance of the work by Ocean or any of its subcontractors. There is no dispute that
plaintiff claims his injuries were caused by the performance of his work as an employee
of Kenvil and that Kenvil was a subcontractor hired by Ocean. Additionally, Ocean is
also required to indemnify Seaport for all claims alleged to have been caused by the
use of any machinery or equipment, specifically including a ladder at the jobsite. There
is no dispute that plaintiffs claims are alleged to have been caused by Plaintiff's use of
a ladder at the jobsite. As such, it's clear that Ocean is required to indemnify Seaport.
Likewise, Kenvil is contractually required to indemnify Seaport.
Plaza does not oppose Seaport's motion but rather brings its own cross-motion
seeking the exact same relief, dismissal of the plaintiffs Labor Law 200 and common
law negligence claims and summary judgment on its cross-claims for contractual
indemnification against Ocean and Kenvil. While Plaza's cross-motion is untlmely, the
court will consider it in the interests of justice as it seeks the same or substantially
identical relief as the timely summary judgment motion made by Seaport (see Conklin v
Triborough Bridge and Tunnel Authority, 49 AD3d 320, 321 (1st Dept 2008]; Filannino v
Triborough Bridge & Tunnel Auth, 34 AD3d 280, 281 [1st Dept 2006]). The issues
raised are already before the court and the identical nature of the grounds sought
provides the requisite good cause needed to review the merits of the otherwise untimely
cross-motion. (see Alonzo v Safe Harbors of the Hudson Haus. Dev. Fund Co., Inc.,
104 AD3d 446, 448-49 [1st Dept 2013]; Homeland Ins. Co. of N. Y. v National Grange
Mut. Ins. Co., 84 AD3d 737, 738-39 [2d Dept 2011 ]).
The moving papers detail the broad language of the various indemnification
clauses in the contracts between the various entities working at the subject construction
site. The indemnification obligations pass through from Seaport to Plaza to Ocean to
Kenv1I. Ocean assumed Plaza's obligations and liabilities to the Seaport defendants
and, in turn, Kenvil assumed Ocean's obligations to the Seaport defendants and Plaza.
All of the contractual agreements contain broad indemnification provisions ("arising out
of' or "in connection with" the performance of the contracted work) that do not require
any showing offault or negligence. Thus, Plaza would be entitled to indemnification
form Ocean and Kenvil (and ultimately Kenvil). However, Plaza cannot be indemnified
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for its own negligence and would also not be entitled to a dismissal of the plaintiffs
Labor Law 200 and common law negligence claims if there was evidence that Plaza
was negligent.
The question on the cross-motion becomes, Is there evidence in the record
sufficient to support a finding that Plaza was negligent and that its negligence was a
proximate cause of the plaintiff's accident? Plaza says no. Kenvil argues that there is
evidence of Plaza's negligence. It appears to be undisputed that the ladder at issue
was not owned, supplied by, or set up by the plaintiffs employer, Kenvil. Both the
plaintiff and his co-worker, Chris Hald, testified at deposition that they did not know who
owned the subject blue ladder, had no knowledge as to who separated the blue
extension ladder and had no knowledge as to who set up the blue ladder against the
foundation wall. Kenvil's foreman testified that Kenvil only used orange ladders at the
jobsite and his testimony was corroborated by both the plaintiff and Mr. Hald. Kenvil's
ladders also had the company name imprinted on them. Finally, it is not disputed that
no one from Kenvil ever directed or instructed the plaintiff to use the blue !adder as
opposed to the orange extension ladders.
As the construction manager/general contractor for the jobsite, Plaza can be held
liable for the dangerous condition of the ladder only if it either created the dangerous or
defective condition or having actual or constructive notice of it, it was had the authority
to remedy it and failed to do so. (see Tisselin v Memorial Hospital for Cancer and Allied
Diseases, 221 AD3d 570, 572 [1st Dept 2023]; Dirschneider v Ro/ex Realty Co, LLC,
157 AD3d 538, 539 [1st Dept 2018]; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d
139, 143-144 [1st Dept 2012]). Kenvil suggests there is sufficient evidence in the
record from which a trier of fact could infer that Plaza had notice of the defective or
dangerous blue ladder. The Court agrees.
The subject blue ladder was frequently used by workers to gain access to the
jobsite. Mr. Hald, the plaintiffs co-worker, testified that he and others used the blue
ladder everyday for approximately two weeks prior to the date of the accident in order to
gain access to the jobsite. Plaza had a superintendent on site, Jeremy Bunzel, who
was responsible for monitoring the safety of the worksite. He would conduct multiple
walk-throughs of the jobsite every day and he testified that part of his walk-throughs
included checking to see if the ladders were set up correctly. Mr. Bunzel had the
authority to stop any work if he observed an unsafe condition or unsafe work practice.
Clearly separating an extension ladder and using it without any securing device such as
rubber feet or a tie-off is a dangerous and unsafe practice and/or condition. Since Plaza
had the authority to supervise the work and there is at least an issue of fact as to
whether they had notice of the unsafe condition of the blue ladder, Plaza's cross-motion
for summary judgment motion must be denied.
Motion sequence 006
In motion sequence 006, the plaintiff moves for partial summary judgment motion for
partial summary judgment on his Labor Law §240(1) cause of action against Seaport
and Plaza.
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Labor Law§ 240(1), commonly known as the Scaffold Law, requires that owners,
contractors, and their agents "furnish or erect, or cause to be furnished or erected for
the performance of such labor, ... , ladders, ... and other devices which shall be so
constructed, placed and operated as to give proper protection to a person so employed"
(emphases added).
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 (Rocovich
v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). "[T]he single decisive question
is whether plaintiffs injuries were the direct consequence of a failure to provide
adequate protection against a risk arising from a physically significant elevation
differential" (Runner v New York Stock Exch, Inc., 13 NY3d 599, 603 (2009]). To
establish liability on a Labor Law§ 240 (1) cause of action, the plaintiff must show: (1) a
violation of the statute, and (2) that the violation was a proximate cause of his or her
injuries (Blake v Neighborhood Haus. Servs. of N. Y. City, 1 NY3d 280, 287-289 [2003]).
"It is sufficient for purposes of liability under section 240 {1) that adequate safety
devices to prevent the ladder from slipping or to prevent the plaintiff from falling were
absent" (McCarthy v Turner Constr., Inc., 52 AD3d 333,334 [1st Dept 2008} [internal
quotation marks and citation omitted]). The plaintiff is not required to prove that the
ladder was defective (see Fanning v Rockefeller Univ., 106 AD3d 484,485 [1st Dept
2013]; Orellano v 29 E. 37th St, Realty Corp., 292 AD2d 289,290 [1st Dept 2002]).
However, in this case it is undisputed that the ladder the plaintiff was using when he
claims to have been injured was defective both because it was the top half of an
extension ladder that had been separated and because it had no feet and was not
secured or tied-off. This is more than sufficient to establish a prima facie showing of
entitlement to summary judgment as to liability under Labor Law §240(1).
In Hill v City of New York, 140 AD3d 568 [1st Dept 2016}, the plaintiff was injured
while working on a ladder. The plaintiff testified that the ladder wobbled, and he lost his
balance and fell off the ladder. The Court stated that when a ladder is used as a safety
device, it must remain steady and erect while being used and that the failure of the
ladder to remain steady and erect constitutes a violation of Section 240(1) (Id. at 568-
69). Notably, in granting the plaintiffs motion for summary judgment, the Appellate
Division explained that whether the plaintiff fell because the ladder wobbled or because
he dropped the wrench that he was holding was completely irrelevant because as a
matter of law Section 240(1) was violated when the ladder failed to prevent the plaintiff
from falling (Id. at 570; see also Hernandez v Bethel United Methodist Church, 49 AD3d
251, 252 [1st Dept 2008)]['"lt is well settled that [the] failure to properly secure a ladder,
to ensure that it remain steady and erect while being used, constitutes a violation of
labor Law § 240( 1)"']; Montalvo v J. Petrocelli Constr., 8 AD3d 173 [1st Dept 2004]
['"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 steady and erect while being used, constitutes a violation of Labor Law§
240(1 )"']). Numerous other cases from the First Department and other courts
corroborate that it is axiomatic that a plaintiff meets his burden of establishing a prima
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facie showing that he is entitled to summary judgment on a Section 240(1) claim when it
is clear that the plaintiff was injured due to the movement of the ladder {see, e.g.,
Ocana v. Quasar Realty Partners L.P., 137 AD3d 566, 567 [1st Dept 2016] [holding that
the plaintiff was entitled to summary judgment when he was caused to fall off of the
ladder because it wobbled]; Fanning , 106 AD3d at 485 [holding that the plaintiff was
entitled to summary judgment because the evidence demonstrated that the plaintiff was
caused to fall when the unsecured A-frame ladder that he was standing on "suddenly
moved"]; Estrella v GIT Indus., Inc., 105 AD3d 555, 555 [1st Dept 2013] [affirming the
lower court's granting of pa rtia I summary judgment to a plaintiff on his Section 240( 1)
claim when the plaintiff was caused to fall because "the unsecured ladder on which he
was working suddenly moved"]; Marquez v Trustees of Columbia Univ., 95 AO3d 588
[1st Dept 2012] [holding that the plaintiff was entitled to summary judgment when he
was caused to fall off of the ladder because it tipped]). The burden now shifts to the
defendants to rebut the plalntiffs prima facie showing.
In opposition to the motion, the defendants make several arguments. First, they
maintain that there is insufficient proof to establish that the plaintiff was required to use
the blue extension ladder in order to perform his assigned task. The defendants also
argue that the plaintiff's actions were the sole proximate cause of his accident. These
two arguments are intertwined and/or related. Finally, the defendants maintain that
summary judgment to the plaintiff is inappropriate since his accident was unwitnessed
and there are issues of fact as to how the accident occurred.
As set forth above, the undisputed evidence demonstrates that a blue separated
extension ladder was present in the workplace and used by several workers prior to the
plaintiff's accident in order to access the jobsite. Labor Law §240( 1) imposes a non-
delegable duty on defendants to provide safe and secure ladders. However, the
defendants argue that the plaintiff did not need to use the blue extension ladder in order
to access the jobsite and should have found a safer ladder to climb (or utilized a lift) at
the time of his accident. Defendants are asserting a defense that the plaintiff's actions
were the sole proximate cause of his accident.
As noted in the Affirmation in Opposition, there is evidence that Kenvil furnished
orange extension ladders equipped with rubber feet and otherwise fully secured that the
plaintiff could have used instead of the blue separated extension ladder. The plaintiff
admitted that he had used the orange ladder previously, without incident, including at
least two times in the hours preceding this alleged accident. (Ex. F, 114:9-20, 115:12-
116:7, 189:11-15, 190:6-191:12; Ex. I, 98: 14, 190:14-15; Ex. J, 36:13-15). The orange
extension ladder was approximately 300 feet from where the alleged accident occurred.
(Ex. F, 116:4-7). The plaintiff admitted that there was nothing that prevented him from
using the orange extension ladder to access the first floor (Ex. F, 116:8 10). As well,
the plaintiff admitted that Kenvil had furnished boom lifts, which were available for his
use, and he cou Id have used a boom lift to reach the first floor (Ex. F, 198: 11-17). The
plaintiff, however, testified that he did not look for a boom lift, he decided to climb the
broken blue extension ladder half because he happened to see it - "I wasn't looking for
a man lift. I just saw the ladder there" (Ex. F, 198:18-21). Significantly, the plaintiff
admitted that he decided to ascend the broken extension ladder simply because it was
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"more convenient" than walking the 300 feet to the fully-secured extension ladder (Ex.
F, 116:2-3).
Since alternative means of accessing the elevated jobsite were readily available,
a trier of fact could logically conclude that the plaintiff could have prevented his accident
by utilizing them (see Robinson v East Medical Center, LP, 6 NY3d 550, 555 [2006];
Montgomery v Federal Express Corp., 4 NY3d 805 [2005]). It is well settled that a
Labor Law§ 240(1) claim cannot be determined as a matter of law if there are genuine
issues of material fact whether the accident was caused by the plaintiff's failure to use
available safety devices that were adequate for the work being performed. Here there
is an issue of fact as to whether the plaintiff could have utilized the orange ladder or the
boom lift to access his worksite and whether his decision to use the unsecured and
separated blue extension ladder instead was the sole proximate cause of his injuries
(see Egan v Monadnock Const., Inc., 43 AD3d 692 [1st Dept 2007]; Mercado v New
York University, 29 A.D.3d 496, 496-97 [1st Dept. 2006]). Thus, even though the
plaintiff's version of the accident is otherwise uncontroverted, there is an issue of fact as
to whether the plaintiff's actions were the sole proximate cause of his injuries.
Accordingly, in motion sequence 006, the plaintiff's motion for partial summary judgment
on Labor Law §240(1) is denied.
For the reasons set forth hereinabove, it is hereby
ORDERED and ADJUDGED that the motion (Mot. Seq. 003) of Third-Party
Defendant/Second Third-Party Defendant KENVIL UNITED CORP. for summary
judgment dismissing all third-party claims and cross-claims sounding in common law
indemnity and contribution against them is GRANTED and all such claims are
dismissed; and it is further
ORDERED and ADJUDGED that the motion (Mot. Seq. 004) of Third-Party
Defendant/Second Third-Party Defendant OCEAN STEEL & CONSTRUCTION, LTD.
For summary judgment on its claim for common law indemnification against Third-Party
Defendant/Second Third-Party Defendant KENVIL UNITED CORP. is DENIED; and it is
further
ORDERED and ADJUDGED and DECLARED that the motion (Mot. Seq. 004) of Third-
Party Defendant/Second Third-Party Defendant OCEAN STEEL & CONSTRUCTION,
LTD. For summary judgment on its claim for contractual indemnification against Third-
Party Defendant/Second Third-Party Defendant KENVIL UNITED CORP. is GRANTED,
and Third-Party Defendant/Second Third-Party Defendant KENVIL UNITED CORP shall
indemnify Third-Party Defendant/Second Third-Party Defendant OCEAN STEEL &
CONSTRUCTION, LTD.; and it is further
ORDERED and ADJUDGED and DECLARED that the motion (Mot. Seq. 005) of
Defendants/Third-Party Plaintiffs SOUTH STREET SEAPORT LIMITED
PARTNERSHIP and SEAPORT MANAGEMENT DEVELOPMENT COMPANY, LLC for
summary judgment dismissing Plaintiffs causes of action for negligence and violation of
Labor Law§ 200 as against them is GRANTED; and it is further
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ORDERED and ADJUDGED and DECLARED that the motion (Mot. Seq. 005) of
Defendants/Third-Party Plaintiffs SOUTH STREET SEAPORT LIMITED
PARTNERSHIP and SEAPORT MANAGEMENT DEVELOPMENT COMPANY, LLC for
summary judgment on its claim for contractual indemnification against Defendant
PLAZA CONSTRUCTION, LLC, and Third-Party Defendants, OCEAN STEEL &
CONSTRUCTION LTD and KENVIL UNITED CORP. is GRANTED, and PLAZA
CONSTRUCTION, LLC, OCEAN STEEL & CONSTRUCTION LTD and KENVIL
UNITED CORP. shall indemnify Defendants/Third-Party Plaintiffs SOUTH STREET
SEAPORT LIMITED PARTNERSHIP and SEAPORT MANAGEMENT DEVELOPMENT
COMPANY, LLC; and it is further
ORDERED that the cross-motion (Mot. Seq. 005) of Defendant/Third-Party
DefendanUSecond Third-Party Plaintiff Plaza Construction LLC for summary judgment
is DENIED; and it is further
ORDERED and ADJUDGED and DECLARED that the motion (Mot. Seq. 006) of
Plaintiff MICHAEL SCANLON for partial summary judgment on his Labor Law§ 240(1)
cause of action against Defendants SOUTH STREET SEAPORT LIMITED
PARTNERSHIP, SEAPORT MANAGEMENT DEVELOPMENT COMPANY, LLC, and
PLAZA CONSTRUCTION LLC is DENIED.
This constitutes the decision and order of the court.
Mot. Seq. 003
10/1/2024
DATE NICHOLAS W. MOYNE, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
Mot. Seq. 004
10/1/2024 \ ~ ~
DATE NICHOLAS°W. MOYNE, J.S.C.
~
CHECK.ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
Mot. Seq. 005
10/1/2024
DATE NICHOLAS W. MOYNE, J.S.C.
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~ §
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
APPLICATION:
GRANTED
SETTLE ORDER
□ DENIED GRANTED IN PART
SUBMIT ORDER
□ OTHER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
□ REFERENCE
(signatures continue next page)
Mot. Seq. 005 Cross-Motion
10/1/2024
DATE
CHECK ONE:
APPLICATION:
CASE DISPOSED
GRANTED
SETTLE ORDER
0 DENIED
§ NICHOLAS W. MOYNE, J.S.C.
NON-FINAL DISPOSITION
GRANTED IN PART
SUBMIT ORDER
□
OTHER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
Mot. Seq. 006
10/1/2024
DATE
CHECK ONE:
APPLICATION:
~
CASE DISPOSED
GRANTED
SETTLE ORDER
0 DENIED
§ NICHOLAS W. MOYNE, J.S.C.
NON-FINAL DISPOSITION
GRANTED IN PART
SUBMIT ORDER
□
OTHER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
15534512020 SCANLON, MICHAEL vs. HOWARD HUGHES CORPORATION Page 13 of 13
Motion No. 003 004 005 006 006
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