TIMMONS, JOSEPH v. BARRETT PAVING MATERIALS, INC. ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
429
CA 10-01067
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
JOSEPH TIMMONS AND JENNIFER TIMMONS,
PLAINTIFFS-APPELLANTS-RESPONDENTS,
V MEMORANDUM AND ORDER
BARRETT PAVING MATERIALS, INC.,
DEFENDANT-RESPONDENT-RESPONDENT.
----------------------------------------------
BARRETT PAVING MATERIALS, INC., THIRD-PARTY
PLAINTIFF-RESPONDENT-RESPONDENT,
V
SCHNEIDER BROTHERS CORPORATION,
THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.
(ACTION NO. 1.)
----------------------------------------------
BARRETT PAVING MATERIALS, INC.,
PLAINTIFF-RESPONDENT,
V
COLONY INSURANCE COMPANY, DEFENDANT-APPELLANT.
(ACTION NO. 2.)
COTE & VAN DYKE, LLP, SYRACUSE (JOANNE VAN DYKE OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS-RESPONDENTS.
COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (SABRINA A. VICTOR OF
COUNSEL), FOR DEFENDANT-APPELLANT.
COLUCCI & GALLAHER, P.C., BUFFALO (PAUL G. JOYCE OF COUNSEL), FOR
DEFENDANT-RESPONDENT-RESPONDENT, THIRD-PARTY PLAINTIFF-RESPONDENT-
RESPONDENT AND PLAINTIFF-RESPONDENT.
COHEN & LOMBARDO, P.C., BUFFALO (STUART B. SHAPIRO OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.
Appeals and cross appeal from a judgment of the Supreme Court,
Oswego County (Norman W. Seiter, Jr., J.), entered April 24, 2009.
The judgment, among other things, granted defendant/third-party
plaintiff Barrett Paving Materials, Inc.’s motion for summary judgment
in action No. 1 and denied defendant Colony Insurance Company’s motion
for summary judgment in action No. 2.
-2- 429
CA 10-01067
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiffs Joseph Timmons and Jennifer Timmons
(Timmmons plaintiffs) commenced action No. 1 alleging, inter alia,
Labor Law violations based on injuries sustained by Joseph Timmons
(Timmons) when he was struck by a metal catwalk while working on
property owned by Barrett Paving Materials, Inc. (Barrett), the
defendant in action No. 1. Barrett in turn commenced a third-party
action against Timmons’ employer, Schneider Brothers Corporation
(Schneider), seeking a declaration that Schneider was obligated to
defend and indemnify it in action No. 1 and that it was an additional
insured under a commercial general liability policy issued to
Schneider by Colony Insurance Company (Colony). Thereafter, Barrett
commenced action No. 2 against Colony, the defendant in that action,
seeking, inter alia, a declaration that it is an additional insured
under the policy issued to Schneider.
In action No. 1, Barrett moved, inter alia, for summary judgment
dismissing the Labor Law § 240 (1), § 241 (6) and § 200 claims against
it, as well as the separate Labor Law § 241 (6) cause of action
against it, and for judgment in the third-party action declaring that
Schneider must defend and indemnify it in the Timmons action. Supreme
Court granted those parts of the motion with respect to the Labor Law
and, although the Timmons plaintiffs also asserted a cause of action
for common-law negligence, the court, apparently sua sponte, dismissed
the complaint in its entirety. We note that the Timmons plaintiffs do
not contend on appeal that Barrett did not seek that relief with
respect to the common-law negligence cause of action, nor do they
contend that Barrett was not entitled to it. The Timmons plaintiffs
thus are deemed to have abandoned any contention with respect to the
alleged viability of the common-law negligence cause of action (see
Ciesinski v Town of Aurora, 202 AD2d 984).
Contrary to the Timmons plaintiffs’ contention, the court
properly granted that part of the motion with respect to Labor Law §
240 (1). It is well settled that Labor Law § 240 (1) “was designed to
prevent those types of accidents in which the scaffold, hoist, stay,
ladder 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” (Runner v New York Stock
Exch., Inc., 13 NY3d 599, 604, quoting Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, 501). “[F]or section 240 (1) to apply,
a plaintiff must show more than simply that an object fell causing
injury to a worker. A plaintiff must show that the object fell, while
being hoisted or secured, because of the absence or inadequacy of a
safety device of the kind enumerated in the statute” (Narducci v
Manhasset Bay Assoc., 96 NY2d 259, 268).
Here, the record establishes that, prior to the accident, Timmons
and a coworker had tack-welded the catwalk to a building, following
which the workers noticed that the outside portion of the catwalk was
slightly higher than the inside portion. Timmons’ coworker attempted
to level the catwalk by pushing down on it with a manlift while
-3- 429
CA 10-01067
Timmons, who was standing on a lower catwalk, prepared to weld a
support gussett underneath the tack-welded catwalk. As a result of
the pressure exerted on the catwalk by the manlift, the tack-weld on
the portion of the catwalk closest to Timmons broke and that end of
the catwalk fell, striking Timmons in the head and pinning him between
the upper catwalk and the handrail of the lower catwalk. “Since the
[catwalk] was not an object being hoisted or secured, Labor Law § 240
(1) does not apply” (id. at 269; see Bennett v SDS Holdings, 309 AD2d
1212, 1213). We thus conclude that Timmons was “exposed to the usual
and ordinary dangers of a construction site, and not the extraordinary
elevation risks envisioned by Labor Law § 240 (1)” (Rodriguez v
Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843).
With respect to Labor Law § 241 (6), the court properly concluded
that the Industrial Code regulations relied upon by the Timmons
plaintiffs are either insufficiently specific to support such a claim
or cause of action or are inapplicable to the facts of this case. 12
NYCRR 23-1.5 “sets forth only a general safety standard and is thus
incapable of supporting a Labor Law § 241 (6) claim” or cause of
action (McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1583 [internal
quotation marks omitted]; see Wilson v Niagara Univ., 43 AD3d 1292,
1293). In addition, 12 NYCRR 23-1.7 (a) does not apply here because
there is no evidence that the area in which Timmons was working was
“normally exposed to falling material or objects” within the meaning
of that section (12 NYCRR 23-1.7 [a] [1]; see Perillo v Lehigh Constr.
Group, Inc., 17 AD3d 1136, 1138). Lastly, 12 NYCRR 23-2.3 also has no
application to this case because it regulates “the final placing of
structural steel members” (12 NYCRR 23-2.3 [a] [1]), which was not the
task in which Timmons was engaged at the time of his accident (see
Smith v Le Frois Dev., LLC, 28 AD3d 1133, 1134). In any event, even
if the upper catwalk was a “structural steel member[],” 12 NYCRR 23-
2.3 (a) (1) “does not require that hoisting ropes be used for the
placing of structural steel members. Rather, the regulation applies
only when hoisting ropes are actually used for the placing of
structural steel members. Thus, because no hoisting ropes were used
by [Timmons], the regulation is inapplicable” (Hasty v Solvay Mill
Ltd. Partnership, 306 AD2d 892, 894).
With respect to Labor Law § 200, that statute “codifies the
common-law duty of an owner or employer to provide employees with a
safe place to work” (Jock v Fien, 80 NY2d 965, 967; see Ross, 81 NY2d
at 505; Lombardi v Stout, 80 NY2d 290, 294). “An implicit
precondition to this duty is that the party charged with that
responsibility have the authority to control the activity bringing
about the injury” (Comes v New York State Elec. & Gas Corp., 82 NY2d
876, 877 [internal quotation marks omitted]). “Where the alleged
defect or dangerous condition arises from the contractor’s methods and
the owner exercises no supervisory control over the operation, no
liability attaches to the owner under . . . Labor Law § 200” (id.; see
Lombardi, 80 NY2d at 295).
Here, Barrett established that it did not supervise or control
the manner or method of the work performed by Timmons, and the Timmons
plaintiffs failed to raise a triable issue of fact in opposition (see
-4- 429
CA 10-01067
Lovall v Graves Bros., Inc., 63 AD3d 1528, 1530; Uzar v Louis P.
Ciminelli Constr. Co., Inc., 53 AD3d 1078, 1079; cf. Capasso v Kleen
All of Am., Inc., 43 AD3d 1346, 1347-1348). Although there is
evidence in the record that Barrett’s plant superintendent oversaw the
timing and sequence of the work, that his responsibilities included
job safety, and that he could directly address an employee of
Schneider if he observed an unsafe practice, it is well established
that “monitoring and oversight of the timing and quality of the work
is insufficient to raise a triable issue of fact with respect to
supervision or control for the purposes of . . . Labor Law § 200”
(McCormick, 78 AD3d at 1581). Similarly, “a general duty to ensure
compliance with safety regulations or the authority to stop work for
safety reasons is insufficient to raise a triable issue of fact” under
Labor Law § 200 (id. at 1582).
The court also properly granted that part of Barrett’s motion for
summary judgment declaring that Schneider had a duty to defend Barrett
in the Timmons action. We need not address that part of the motion
with respect to indemnification in view of our decision that the
complaint in action No. 1 was properly dismissed. Contrary to the
contention of Schneider, a purchase order containing a defend and
indemnify clause issued by Barrett to Schneider prior to the accident
constituted a “written contract” within the meaning of Workers’
Compensation Law § 11 (see generally Mentesana v Bernard Janowitz
Constr. Corp., 36 AD3d 769, 771; Kay-Bee Toys Corp. v Winston Sports
Corp., 214 AD2d 457, 458, lv denied 86 NY2d 705). The fact that the
purchase order was not signed by a representative of Schneider is of
no moment inasmuch as there is sufficient evidence in the record to
establish as a matter of law that Schneider assented to the terms of
the purchase order and intended to be bound thereby (see Flores v
Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369, rearg denied 5 NY3d
746). Specifically, the prior course of conduct between the parties,
Schneider’s performance of the work set forth in the purchase order,
and its procurement of insurance on Barrett’s behalf in accordance
with the purchase order establishes that Schneider “was aware of and
had assented to the terms of . . . the purchase order” (Kay-Bee Toys
Corp., 214 AD2d at 459; cf. Auchampaugh v Syracuse Univ., 67 AD3d
1164, 1165). There is no merit to the further contention of Schneider
that the agreement is barred by the statute of frauds (see General
Obligations Law § 5-701 [a] [1]).
With respect to action No. 2, we conclude that the court properly
denied Colony’s motion seeking a declaration that there is no coverage
and, implicitly, no duty to provide a defense, under its insurance
policy and granted Barrett’s cross motion seeking a declaration that
it is an additional insured under that policy. The policy’s
additional insured endorsement provides that a third party may be
added as an additional insured “when [Schneider] and the [third party]
. . . have agreed in writing in a contract or agreement that such
person or organization be added as an ‘additional insured’ on
[Schneider’s] policy.” Here, the purchase order, which required
Schneider to add Barrett as an additional insured on its commercial
-5- 429
CA 10-01067
general liability policy, constitutes an agreement in writing for
purposes of the additional insured endorsement.
Entered: April 1, 2011 Patricia L. Morgan
Clerk of the Court