MARCY S. FRIEDMAN, Judge.
In this Labor Law action, plaintiff Orlando Toro sues for injuries he sustained while dumping containers of trash into a garbage truck at a construction site. Defendants Plaza Construction Corp. ("Plaza"), New York University ("NYU"), and New York University Real Estate Corporation ("NYU Real Estate") move for summary judgment dismissing the complaint and granting judgment on their contractual indemnification claim against third-party defendant Rite-Way Internal Removal, Inc. ("Rite-Way"). By separate motion, Rite-Way moves for summary judgment dismissing the complaint,
NYU is the owner of the property where the accident occurred and Plaza was the general contractor or construction manager of the project. Rite-Way was the demolition contractor and was responsible for demolition and carting. (Tarnowski Aff, in Support, ¶ 13.) Plaintiff was employed by Rite-Way as a truck driver assigned to picking up demolition debris. Plaintiff testified that the accident occurred as follows: On October 11, 2007, after making a few stops to pick up debris at other locations, plaintiff arrived at the NYU site and began dumping containers of debris into his garbage truck. (P.'s Dep. at 36, 45.) He testified that he would dump the trash into the truck and pull a lever which activated a blade that would compact the debris. (
The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment." (CPLR 3212[b];
Labor Law § 241(6) Claim
Labor Law § 241(6) provides:
It is well settled that this statute requires owners and contractors and their agents `"to provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." (
In seeking dismissal of plaintiff's section 241(6) claim, defendants first argue that plaintiff was not engaged in an enumerated activity. Work may be found to be covered by the Labor Law where it does not "fall into a separate phase easily distinguishable from other parts of the larger construction project," does not take place in anticipation of construction or after construction is completed, and is "ongoing and contemporaneous with the other work that formed part of a single contract." (
Here, defendants fail to demonstrate as a matter of law that plaintiff's work was not a protected activity within the meaning of Labor Law § 241(6). In claiming that the work was not protected, defendants rely on the facts that plaintiff was a truck driver, assigned to pick up demolition debris; that he did not perform any actual demolition work; and that he had not been to the NYU construction site prior to the date of the accident. (
In opposition, however, plaintiff submits evidence showing that plaintiff's employer, Rite-Way, was the demolition subcontractor for the project, and that its demolition work was ongoing. In particular, plaintiff submits the Purchase Order Confirmation between Rite-Way and NYU, dated September 13, 2007, and providing a completion date for Rite-Way's work of December 12, 2007. This document describes the work to be done by Rite-Way as "demolition" work, including: Cellar-Phase 1: "[r]emove furred out sheetrock partitions and wood bench"; "[r]emove existing kitchen equipment, conveyor at dishwashing room"; "[c]omplete gut at dishwashing room"; "[r]emove ceiling system"; "[c]art metal base cabinet at servery." (
Defendants do not dispute that Rite-Way was the demolition subcontractor for the project. Nor do they dispute that Rite-Way continued to perform demolition work that was part of the contract, after plaintiff's accident.
In the instant action, plaintiff's employer was thus clearly hired to perform an activity enumerated under the Labor Law. Moreover, on the facts presented, the court finds that this is not a case in which "there is a bright line separating the enumerated and nonenumcrated work." (
In so holding, the court rejects defendants' apparent contention that Labor Law coverage is unavailable because plaintiff was a truck driver and did not himself perform the demolition. As the
The court also rejects defendants' contention that plaintiff's accident did not occur in an area where construction was being performed. As held in
plaintiff's Labor Law § 241(6) claim is that defendants violated Industrial Code section 23-1.8(a), which provides that "[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in . . . chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes."
The branches of defendants' motions to dismiss plaintiff's labor Law § 241(6) claim should accordingly be denied.
The branches of defendants' motions for dismissal of plaintiff's claim under Labor Law § 240(1) are unopposed and will therefore be granted. The branches of defendants' motions for dismissal of plaintiff's claims under Labor Law § 200 and for common law negligence will also be granted. Plaintiff's submission of evidence showing Plaza's presence at the work site is plainly insufficient to raise a triable issue of fact as to whether Plaza supervised or controlled the work. (
Plaza and the NYU defendants also seek summary judgment on their contractual indemnification claim against Rite-Way. Plaza and NYU make a prima facie showing of entitlement to summary judgment based on the Purchase Order between Plaza and Rite-Way, in which Rite-Way agrees to indemnify and hold harmless Plaza and NYU "from and against all liability, damage, loss, claims, demands and actions of any nature whatsoever (including attorney's fees and disbursements) which arise out of or are connected with . . the performance of Work by" Rite-Way. (Defs.'s Motion, Ex. E., Art. 10.4.) Defendants make a prima facie showing, which plaintiff does not dispute, that they did not supervise or control plaintiff's work, and did not have actual or constructive notice of an unsafe condition. Plaintiff's injury unquestionably arose out of his work for Rite-Way. While Rite-Way argues that this motion for indemnification is premature, it does not submit any evidence whatsoever to show that Plaza or the NYU defendants were negligent. Absent a triable issue of fact as to their negligence, Plaza and the NYU defendants are entitled to judgment on their indemnification claim.
It is accordingly hereby ORDERED that the motion of defendants Plaza Construction Corp., New York University, and New York University Real Estate Corporation, and the motion of third-party defendant Rite-Way Internal Removal, Inc., for summary judgment is granted to the following extent: The § 200 and common law negligence claims are dismissed; the § 240(1) claim is dismissed without opposition; and the § 241(6) claim is dismissed without opposition except to the extent that it is based on Industrial Code § 23-1.8(a); and it is further
ORDERED that Plaza Construction Corp., New York University, and New York University Real Estate Corporation are granted judgment on their claim for contractual indemnification against Rite-Way Internal Removal, Inc.
This constitutes the decision and order of the court.