Zakowski v. Structure Tone, LLC

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Zakowski v Structure Tone, LLC 2025 NY Slip Op 31293(U) April 15, 2025 Supreme Court, Kings County Docket Number: Index No. 500092/2021 Judge: Anne J. Swern 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.

FILED: KINGS COUNTY CLERK 04/15/2025 03:49 PM INDEX NO. 500092/2021 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 04/15/2025

Atan IAS Trial Tern¹, Part 75 of the Supreme Court of the State of New York, Kings Coµnty, at the Courthouse locatecJ at 360 Adams Street,.Brooklyn, New York on the 15 th day ofApril 2025 PRE SENT: HON.ANNE 1. SWERN, J.S.C.

EUGENE ZAKOWSKI, DECISION & ORDER IndexNo,: 500092/2021 Plaintiff(s), Calendar No.: 49 -against- Motion Seq.: 003 STRUCTURE TONE, LLC, INTEGRATED'HOLDING GROUP LP,.BOSTON PROPERTIES, INC., Return Date: 2/13/2025 CONSOLIDATED CARPETASSOCIATES, LLC, CONSOLIDATED CARPET WORKROOM, LLC, and CONSOLIDATED SPECIALTY, LLC,

Defendant(s).

STRUCTURETONE, LLC,

Third.;.Party Plaintiff,

-against-

ATLAS-ACON ELECTRIC SERVICE CORPORATION,

Third-Party Defendant.

Recitation of the following papers as requited by CPLR 2219(a): Papers Numbered N otiGe ofMotion, A:ffinnation, Affidavits and Exhibits (NYSCEF 95-121) ...................................................... 1, 2 Affirmations, Memorandums of Law and Exhibits in Opposition (NYSCEF 123-13 2) ................................ ,............. 3-8 Reply Affirmations (NYSCEF 13 7,.] 39, 141, 143) .... ,.......................... ;.; . .,.,, 9-12

Upon theforegoirzgpapers anci after pral argument, th? decision and order ofthe Court

is asfoltows:

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FILED: KINGS COUNTY CLERK 04/15/2025 03:49 PM INDEX NO. 500092/2021 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 04/15/2025

proof of any negligence or actual supervision on its ovm part" (McCarthy v Turner Construction,

Inc., I 7NY3d 378).

To impose liability for contractual indemnification against an indemnitor; they must

actually exercise supervision and control over the work; contractual authority standing alone is

insufficient (id.; and Chapa v. Bayles Props., Inc'., 22lAD3d 855; 857 [2d Dept 2023]). An

indemnitee1s tight· to contractual indemnification. also ''depends upon the specific language of the

contract" (Chapa v. Bayles Props,, Inc,, 221 AD3d 857). The contractual language must not

violateGeneral ObligationsLaw § 5-322.1,which ''pennitsapartially negligentgeneral

contractor to seek contractual indemnification from its subcontractor so long as the

indemnification provision does not purpcirtto indemnify the general contractor for its own

negligence" (Feliz vCitnalta Constr. Corp., 217 AD3d750, 752 [2d Dept 2023] [internal

citations omitted]; Caracciolo v SHS Ralph, LLC; 226 AD3d 861, 864 [2d Dept 2024]; Brooks v.

JudlauConstr. Inc,, 11 NY3d204, 207 [2008]).

The respective Subcontracts between movants and the subcontractors Consolidated

Carpet and Atlas contain a ''negligence trigger" as a condition precedent to movartts' right to

indemnification (NYSCEF 11 b, p. l 0, ,n.² and NYSCEF 111, p.12, 11 L2). Consolidated

Carpet and Atlas agreed to indemnity and hold harmless the movants ''from. and• against any and

all claims .. .in whole or in part and in any manner from the acts; omissions, breaChor defaultof

the Subcontractor [Consolidate Carpet]" (id.). Therefore, as a question of fact exists whether

Sn;ucture Tone, Consolidated Carpet or Atlas had the duty to.safeguard the area, a conditioQal

qrder of eitlter contractual or common law incletnnification and contribution on behalf of

movants is inappropriate at this time (Agurto v One Boerum. Dev. Partn~rs, LLC, ·221 AD3d 442;

444 ·[1 st Dept 2023]). The partie,s' conflicting testimony does not establish as. a matter of law that

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FILED: KINGS COUNTY CLERK 04/15/2025 03:49 PM INDEX NO. 500092/2021 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 04/15/2025

either subcontractor was negligent (see Xiang Fu He v Troon Management; Inc., 34 NY3d 175

ap.d Cameron v CityofLongBeach, 297 AD2d 774).

The Court has considered the parties ren1aini11g arguments and finds srune to be without

merit.

Accordingly it is hereby

ORDERED that defendants INTEGRATED HOLDING GROUP LP and BP 399 PARK

AVE LLG i/s/h/a BOSTON PROPERTIES, INC. 's motion for summary judgment dismissing

plaintiff's common law negligence and Labor Law § 200 causes of action against it is granted,

and it is further

ORDERED that defendantJNTEGRATEDHOLDING GROUP LP;s motion for

summary judgment dismissing plaintiff's Labor Law § 241 [6] cause of action against it is

granted and INTEGRATED HOLDING GROUP LP is dismissed from this action1 and is further;

ORDERED that defendant/third-party plaintiff STRUCTURE TONE's motion for

summary judgment dismissing plaintiff's common law negligence a:ndLabor Law§ 200 causes

of action against it is denied, and it is further

ORDERED that defendant BP 399 PARKAVE LLGi/s/h/a BOSTON PROPERTIES,

INC. and defendant/third-party . plaintiff STRUCTURE TONE's motion for· summary judgment .

dismissing plaintiff's Labor Law § 241 ·[6] claim against them is denied, and it is further

ORDERED that defendants INTEGRATED HOLDING GROUP LP and BP 399 PARK

AVE LLC i/s/h/a BOSTOW PROPERTIES; INC .. and defendant/third-party plaintiff

STRUCTURE TONE's motion for a.conditional order of contractµal and conimon law

indemnification andcoiitributicin against defe11danis CONSOLIDATED CARPET

ASSOCIATES, LLC, CONSOLIDATED CARPET WORKROOM, LLG, CONSOLIDATED

$()009)/2021 PngeBo/9

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FILED: KINGS COUNTY CLERK 04/15/2025 03:49 PM INDEX NO. 500092/2021 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 04/15/2025

SPECIALTY, LLC, and thitd--party defendant ATLAS-ACON ELECTRIC SERVICE

CORPORATION is denied.

This constitutes the decision and order of the Court.

Hon. nc Swerrt, J.S~C. a d: 4/15/2.025 For Clerks use orily: MO _ _ MD _ _ Motion seq.# _ _ __

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Footnotes

[1] of 9 [* 1] Defendants, INTEGRATED HOLDING GROUP LP (Integrated), and BP 399 PARK AVE LLCi/s/h/a BOSTON PROPERTIES, INC. (BP 399) anddefendant/third.;partyplaintiff, STRUCTURE TONE 1 LLC (Structure Tone), have moved fliis Court for an Order pursuantto CPLR § 3212: a) granting summaryjudgment on the First Cause of Action l.n Plaintiff's Complaint sounding in common law negligence and dismissing sajd First Cause of Action. The motion is granted as to the INTEGRATED{tenant) and 399 BP (owner) and denied as to STRUCTURE TONE (general contractor). · b) granting summaryjudgment on the Second Cause ofActionin Plaintiff's Complaint for violation of Labor Law §§ 200 and dismissing said Second Cause of Action. The motion is granted asto the INTEGRATED (tenant) and399 BP (owner) and STRUCTURE TONE (general contractor). c) granting summary judgment on the Second Cause of Action in Plaintiff's Complaint for violation of Labor Law § § 241 [6] and dismissing said Second Cause of Action. The motion is granted as to the INTEGRATED (tenant) and denied as to 399 BP (owner}and STRUCTURE TONE (general contractor). d) conditionally granting summary judgment to defendant/third-party plaintiff STRUCTURE TONE against third".patfy defendant ATLAS-ACON ELECTRIC SERVICE CORPORATION (ATLAS).for comrnonlaw contribution and indemnification, and contractuaLindemn:ification. The motion is denied. e) conditionally grantingsummary judgment to defendants INTEGRATED, 399 BP AND STRUCTURETONRon their cross claims against defendant CONSOLIDATED CARPET WORKROOM, LLC (Consolidated) for .contractual indemnification: and common law contribution and indemnification. The motion is denied. Plaintiffcommenced this actionfor personal injuries sustained in the course of his employment with Atlas alleging common law negligence and violations of Labor §200~ § 240 and§ 241 [6]. 1 Plaintiff alleges that the .1ccident occurred on the 8th floor of the premises known as. 399 Park Avenue, New York; New York, owned by BP 399 and leased. to defendant.Integrated. Structure Tone, as· the general con.tractor, executed a subcontract with Atlas for electrical work 1 Plaintiff previously discontinued. his qaus.e of action based on Labor Law § 240. 50009il2021. Page2 o/9

[2] of 9 [* 2] (NYSCEF 111). The acci4ent happened when plaintiff slipped and fell on carpet glue that was placedonthe floor ofa pathway by anothe:r subcontractor. None of the pa:rties have advanced an argumentin opposition to granting Integrated 's summary judgment. Therefore~ absent any· evidence of common law negligence on the behalf of the tenant, Integrated, and since Integrated is neither an owner nor general contractor under the Labor Law, plaintiff's complaintartd all cross-claims, are dismissed in their entiretyagainst it Labor Law§ 241 (6) ''Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety.to construction workers. A violation of an explicit and concrete provision of the Industrial Code by a pa:rticipiint in a construction project constitutes some evidence of negligence, for which the owner or general contractor may be held vicariously liable" (Bravo v 609 W. 5 6th Street Property; LLC, 234 AD3d 735 [2d Dept. 2025] [internal quotations and citations omitted]). This section of the Labor Law is a "hybrid statute" because the first sentence reiterates the general common-law standard of care, while the secpnd.sentence imposes a nondelegable duty with respect to compliance with rules of the. Commissioner [Industrial Code] which contain spec:ific, positive command[s]" (Bazdaric v Almah Partners LLC, 41 NY3d 310, 317 [2024], citing Ross v Curtis-.Palmer Hydro-Blee. Co., 81 NY2d 494, 503-504, [l993];see also Toussaint v PortAuth ofN. Y &N.l; 38 NY3d 89, 93 [2022]). Thus, an owner or general contractor is vicariously liable without regard to fault and in the abs_e11ce of control or supervision of the worksite once plaintiff establishes a violation of.a.specific and applicable !ndu~trial Code (Bazdaric v AimahPartners LLC, 41 NY3d 317, citing Rizzuto v L:A. Wenger Cori tr. Co., Inc;, 91 NY2d 343, 348~350; Toussaint v.Port Auih. o/NY..&: N.l; 38 NY3d 94; andNostromvA. W. 500092/202i Page3of9

[3] of 9 [* 3] Chesterton Co., 15 NY3d 502, 507 [201 OJ), Finally, "[t]he Industrial Code should be sensibly interpretecl and applied to effectuate its purpose ofprotecting construction laborers against hazards in the workplace'' (Bazdaric v A/mah Partners LLC, 41 NY3d 317). To avoid summary judgment, plaintiff isrequired to demonstrate that "(l)section 23- 1. 7 [d] [sic] applied under the circwnstances; (2) defendants violated that section's specific commands; (3) this violation alone, or considered with other undisputed factual evidence, constitutes negligence; and (4) the violation caused plaintiff;s injuries (see Bazdaric vAlmah Partners LLC, 41 NY3d 318 [italics added; internalquotations omitted]). The motion is denied as the adhesive was not an integral part of plaintiff's work and when considering the violation with other undisputed facts, there is a-question ofJact whether movants violated

[22] NYCRR§ 23-1.7 [d]and caused plaintiff's injuries (Bazddric vAlmah Partners LLC, 41 NY3d317-318). The evidence establishes that-Structure Tone,as the generalcontractor;had the authority to control access over to the area where the glue was utilized for the carpet installation during the ongoing construction activities. Therefore, the. movants' reliance on Stajfordv Viacom, 32AD3d 388 [2d Dept 2006]) is mispla~ed and without merit. Summary Judgment. When deciding a summary judgment motion, the Court's only role is to identify the existence of triable issues, and notto determine the merits of any such issues ( Vega v Restani Construction Corp., 18 NY3d 499,.505 [2012]) Qrthe·credibility of the movant's version of events (see Xiang Fu He v Troon Management, Inc.; 34 NY3d 167, 175 [2019] [interntil citations omitted]). The Court must view the evidence fo. the light most favorable to. the. nonmoving party, affording them the benefit of alLreasona:ble inferences that can be drawn frorn the evide:nce (see Negri v Shop & Stop,· Inc:, 65 NY2d 625.; 626 {1985]). The motion should.be denied where the 500092/202i l'age.4 of9 4 of 9 [* 4] facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnessesjs in question (see Cameron v City ofLong Beach, 297 AD2d 773,

[774] [2dDept 2002]). Labor Law § 200 and Common Law Negligence LahorLaw §200 only applies to owners, general contractors, or their agents because it is a codification of their common-law duty to maintain a safe workplace (Delaluz v Walsh; 228 AD3d 619, 621 [2dDept.. 2024]). "An implicit precondition to (the] duty to provide a safe place to work is that the party charged with· that re,Sponsibility have the authority to control the activity bringing aboutthe injury to enable itto avoid or correct an unsafe condition'' (id. [internal citations and quotations omitted]; Guclu v 900 EighthAvenue Condominium, LLC, 81 AD3d 593). An owner and general contractor inay also beheld liable "[W]here a plaintiffs injuries stein not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, [an ownerartd/or general contractor] may be liable(mderLabor Law § 200 if it either created tlie dangerous condition that caused the accident or had actual or constnictive notice of the dangerous condition" (Banscher v Actus Lend Lease, LLC, 132 AD3d 707, 709 [2dDepL2015]). Notice is requited because Labor Law§ 200 is an outgrowth ofthe basic common-law principle that they should not be held [vicariouslyl r~Sponsible for the negligent acts of others over whom they had no direction or control (Marte v Tishman Col'lstruction Corporatfon~ 223 AD3d 527, S27 [ pt Dept. 2024]; and see Ross v Curtis-Palme.r Hydro-Electro Co., 81 NY2d494,.S05~506 [1993] and Labor Ll:lw § 200). The evidence fails to establish that the out-of-possession landowner BP 399 had.actual or constructive. notice .of the. adhesive 011 the floor while the workers from the v~i.ou~ trades were S00092l202I Page5 o/9 5 of 9 [* 5] passingthrough the area. Additionally, plaintiff has only opposed themoticm as to the general contractor, StructllfeTone. Therefore, summaryjudg111entis granted to BP399 (Marte v Tishman C:onstrnctlon Corporation, 223AD3d 527; and see Ross v Curtis-Pa/mer Hydro-Electro Co., 81 NY2d SQS.,506). However, the motiortis denied as to Structure Tone since a question of fact exists whether it was negligent in controlling and coordinating ofthe work of all trades, restricting access to the area where the adhesive was being placed on the floor and ensuring that safety zones were in _place when the carpet was being installed (Gasques v State ofNew York, 59 AD3d 666, 667 [2d Dept 2009]). The fact that it is alleged that the accident happened within two to three minutes of the adhesive being placed on the floor is not controlling. Itis Structure Tone's alleged 1,1egligent failure to control access to the area before the adhesive was placed on the floor. Therefore, the question tobe answered by the jury is whether Structure Tone had sufficient notice that it had not ensured• that access was restricted to the area and/or established safety zones during the Carpet· installation. To the extent that Structure Tone argues thatConsolidated Carpet failed to warn plaintiffofthe adhesive, the testimony is conflicting as to who bore this duty alsq warranting a denialofthe motion (see Xiang Fu He v Troon Management; Inc., 34 NY3d 175 and Cameron v City ofLong Beach, 297 AD2d 774). Indemnification and Contribution Common law indemnification is generally available to indeinhitee "who is held resporisible solely by operation oflawbe.cause of [its] rf,:'lation to the actual wrongdoer" (McCarthy v Turner Construction, .Inc., 17NY3d369, 3 76 [2011 ]). Therefore, the indemnitee cannot dbtain common:.law inde111nification "unless it has been Iteld vicariously· liable without 500092/2021 Page6of9 6 of 9 [* 6]