Ferluckaj v. Goldman Sachs & Co.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered March 20, 2007, which, upon reargument, granted the motion of defendant Goldman Sachs (Goldman) for summary judgment to the extent of dismissing plaintiffs Labor Law § 240 (1) claim as against it, and granted third-party defendant American Building Maintenance Co.’s motion to dismiss — 360 — Goldman’s third-party claim against it for indemnification, modified, on the law, to deny Goldman summary judgment dismissing plaintiff’s Labor Law § 240 (1) claim as against it, and otherwise affirmed, without costs. Order, same court and Justice, entered August 24, 2006, to the extent not superseded by the March 20, 2007 order, which, to the extent appealed from, denied Goldman summary judgment dismissing the complaint as against it, modified, on the law, to grant Goldman summary judgment only to the extent of dismissing the claims pursuant to Labor Law §§ 200 and 241 (6) as against it, and otherwise affirmed, without costs. Defendant Goldman leased several floors in the building at 32 Old Slip Road in Manhattan, including the 29th floor. Its lease provided that the building’s owner, which is not a party to this action, would furnish cleaning services, including window washing. The owner contracted with plaintiffs employer, third-party defendant American Building Maintenance Co. (ABM), to provide those cleaning services. The agreement between the owner and ABM required ABM to clean the exterior and interior of the building’s windows every three months. It further provided for ABM, at the owner’s request, to perform the initial cleaning of all interior windows at no extra charge “[pjrior to tenant occupancy.” From time to time, Goldman purchased cleaning services not covered by its lease directly from ABM. The services Goldman states it purchased directly from ABM were pantry maintenance and carpet care. Goldman maintains that it never purchased any exterior window cleaning (including cleaning of the interiors of such windows) directly from ABM. It is unclear from the record when Goldman’s lease commenced or when Goldman initially took occupancy of the 29th floor. It is undisputed, however, that between January and March 2001, defendant Henegan Construction Co. performed a complete build-out of several floors leased by Goldman in the building. This was pursuant to an agreement with Goldman and included the 29th floor. Plaintiff’s accident occurred on March 22, 2001. By that date, Henegan had completed its construction work on the 29th floor, although some minor punch-list work may have been outstanding. Indeed, on the morning of the accident, plaintiff noticed some “construction material” and tools on the 29th floor and observed that it was “dusty.” On March 22, 2001, plaintiff was directed to go to the 29th floor to assist in cleaning the window interiors. The windows in the offices on the 29th floor rose from a point three feet above the floor and extended upward an additional six feet. Plaintiff — 361 — was equipped with nothing other than a hand cloth to clean the windows. She stated in an affidavit submitted in support of her motion for summary judgment on her Labor Law § 240 (1) claims that she was “cleaning dust off the windows that was from the construction.” Plaintiff took instructions related to the window cleaning exclusively from her ABM supervisor. To clean the top of a window in one of the offices, plaintiff climbed on top of a desk adjacent to the windows. As she was moving along the width of the window, she fell off the desk to the floor, injuring herself. Plaintiff testified at her deposition that she knew at the time of the accident that there was a step stool with two steps in a supply closet maintained by ABM in the building but that she never asked for it. Plaintiff was not asked at her deposition, nor does the record otherwise reveal, how high the step stool was. Plaintiff further testified that her supervisor was aware that the cleaning staff stood on office desks to reach the tops of the windows. Supreme Court initially denied plaintiffs motion for summary judgment on her Labor Law § 240 (1) claim and Goldman’s cross motion for summary judgment dismissing the complaint in its entirety as against Goldman. The court found that the window cleaning could only be protected activity under the Labor Law if it was incidental to the construction work performed by Henegan, but found that an issue of fact existed regarding the nature of the work. Upon ABM’s motion for reargument, however, the court dismissed plaintiff’s section 240 (1) claim. The court did not revisit the issue of whether Goldman and Henegan were, respectively, an owner and contractor for purposes of Labor Law liability. Rather, the court found that, because she did not avail herself of the step stool, plaintiff was the sole proximate cause of her accident. The court also dismissed Goldman’s claim against ABM for indemnification. Goldman had argued that ABM had a duty to indemnify it in accordance with ABM’s agreement with the owner that ABM would indemnify the owner in connection with actions arising out of, inter alia, “any sub-contracted operations.” We modify Supreme Court’s orders to reinstate plaintiff’s claim against Goldman pursuant to Labor Law § 240 (1) and to dismiss plaintiffs claims against Goldman pursuant to Labor Law §§ 200 and 241 (6). In its initial order, the court stated that plaintiff could only recover under Labor Law § 240 (1) upon a showing that the window cleaning was incidental to construction work. Since that finding, however, the Court of Appeals has clarified the law, holding that “ ‘cleaning’ is expressly afforded protection under section 240 (1) whether or not incidental to — 362 — any other enumerated activity” (Broggy v Rockefeller Group, Inc., 8 NY3d 675, 680 [2007]). Moreover, it was error to dismiss the complaint on the basis that plaintiff was the sole proximate cause of her accident. On their own motions, defendants did not establish as a matter of law that the step stool would have been sufficient to permit plaintiff to avoid the accident (see Balbuena v New York Stock Exch., Inc., 45 AD3d 279 [2007]). Indeed, on plaintiffs motion, defendants failed to even raise a triable issue of fact regarding sole proximate cause (see id.). It is “unclear,” as the concurrence concedes, whether a step stool would have been provided to plaintiff had she asked for one. This lack of clarity is not the result of conflicting factual allegations; rather, it is because defendants failed to set forth any evidence regarding the availability of the step stool. Furthermore, even if it were clear that a step stool would have been provided had plaintiff requested one, defendants, again, failed to present any evidence as to whether it would have constituted an adequate safety device. The statement in the concurrence that an issue of fact exists as to whether plaintiffs inattentiveness was the sole proximate cause of her accident is similarly unavailing. The sole proximate cause defense does not apply where plaintiff was not provided with an adequate safety device as required by the Labor Law (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]). Here, the desk that plaintiff was working on at the time of her accident did not constitute an adequate safety device. Nevertheless, we decline to award summary judgment to either party at this juncture. A question exists as to whether Goldman, as a lessee, is liable here pursuant to Labor Law § 240 (1). That provision enumerates only contractors, owners and their agents as persons charged with providing protective devices to workers. However, a lessee may have liability as an “owner” under the Labor Law when it had the right or authority to control the work site (see Bart v Universal Pictures, 277 AD2d 4, 5 [2000]). Goldman argues that it had no authority over plaintiffs window cleaning because the work was being performed strictly pursuant to ABM’s agreement with the owner. The dissent agrees, submitting that the contract between ABM and the building owner is prima facie evidence that Goldman did not request the work. However, the contract is not dispositive on its face. Accordingly, Goldman did not meet its prima facie burden merely by placing it in the record. . For the contract to have had any probative value for purposes of summary judgment, Goldman would have had to establish — 363 — that the work that plaintiff was performing at the time of her accident was pursuant to one of two provisions in the contract: the provision requiring quarterly window cleaning or the provision requiring ABM, at the owner’s request, to perform a onetime window cleaning prior to a tenant’s occupancy. Goldman’s own witness eliminated the first possibility (at least for summary judgment purposes) by testifying that the quarterly cleanings were only for in-possession tenants and that he did not know when Goldman occupied the space. Moreover, plaintiff presented some evidence that her accident occurred preoccupancy, by stating that construction tools and construction-related materials and dust were still present. As for the second provision, the dissent criticizes as “oblique” plaintiff’s statement that “[t]here has been no testimony that [the building owner] requested the cleaning of the interior windows”; however, that statement, when one is cognizant of the fact that the burden was on Goldman, is entirely appropriate and correct. We further note that Goldman’s witness was not even aware of the provision, and that, moreover, Goldman did not offer the testimony or affidavit of anybody with personal knowledge regarding whether plaintiffs work was being performed pursuant to it. Regardless of Goldman’s status, plaintiffs Labor Law § 241 (6) claim against it should have been dismissed. The two Industrial Code sections cited by plaintiff in her brief—12 NYCRR 23-1.15 and 23-1.16—apply only where a worker was provided with safety railings and safety belts (12 NYCRR 23-1.7) in the first instance (see Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336, 337-338 [2006]). Plaintiffs Labor Law § 200 claim should also have been dismissed, since Goldman did not supervise plaintiffs work and any dangerous condition resulted from her employer’s methods (see Lombardi v Stout, 80 NY2d 290, 294-295 [1992]). We decline, however, to dismiss plaintiffs claim pursuant to Labor Law § 202, which requires owners, lessees, agents and managers of buildings and contractors to provide “safe means for the cleaning of the windows and of exterior surfaces.” Contrary to Goldman’s argument, that section does apply to the cleaning of interior windows (see Bauer v Female Academy of Sacred Heart, 250 AD2d 298, 301 n [1998]). Goldman’s claim against ABM for indemnification was properly dismissed as precluded by Workers’ Compensation Law § 11, since Goldman did not have a written indemnification agreement with ABM and there are no allegations of grave injury (see Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]). The provision in the contract between ABM and the — 364 — owner relied on by Goldman cannot be read to cover work performed by ABM pursuant to a direct contract with Goldman. Concur—Mazzarelli, Saxe and Kavanagh, JJ.