A man was injured when he fell off a ladder while performing painting work at a loading dock at the Hotel. The man struck his head on the concrete sidewalk, sustaining a traumatic brain injury. The building is divided into two units: a Hotel unit and an Entertainment/Retail unit. The loading docks are owned by the Entertainment/Retail unit. The man was an employee of the managing agent of the Hotel unit which is a former owner of the Hotel unit.
There was an easement that allowed the Hotel unit to use portions of the building owned by the Entertainment/Retail unit, including the loading docks. The City of New York and the managing agent entered into a Declaration of Easement and Operating Agreement (DEOA) for the subject premises. Article of the DEOA defines the term owners as a collective reference to the Hotel Property Owner and the Entertainment/Retail Property Owner or either of them. The DEOA states that the Owner hereby grants to and declares for the benefit of the Hotel Property Owner, a non-exclusive casement for the use of the loading docks located in Entertainment/Retail Building as shown on the Attached Plans. However, the section also provides that the Entertainment/Retail Owner shall be responsible for the Maintenance of the loading docks, provided, however, that the Nassau Hotel Owner shall bear a share of such Maintenance costs based on the Owner Building Area Ratio. DEOA states that the Owners shall have the right to retain a building manager and that the building manager is to maintain the sidewalks, building security, the Service Elevator, shared Easement areas located in the cellar of the Entertainment/Retail unit, the loading docks as the Owners shall desire. It further states that the parties agree that the managing agent shall serve as the initial building manager.
By purchase agreement, the managing agent sold the Hotel unit to a real estate investment trust company. Subsequently, the managing agent assigned all of its rights in and under the DEOA, including all such rights associated with the Hotel Property Owner designee, to the real estate investment trust company, as assignee.
On the morning of the accident, the hotel helper was standing near the west loading dock while smoking a cigarette. The complainant man was in the east loading dock at the time, over 100 feet away. He was using an extension ladder and according to the hotel helper, the man had placed the ladder on metal grating. He observed the man falling from the ladder, and then striking the concrete sidewalk. The hotel helper and the doorman ran to the man, and found him lying face down as well as the extension ladder, a rope, a bucket, and spilled paint on the sidewalk. The man had a large gash in the back of his head. The hotel helper took off his shirt, and covered the man. The man was not working with anyone according to the hotel helper. He called for help and for an ambulance, stating that the man was down. He also stated that, after a little while, the man started to revive and he moaned in pain and yelled in Spanish. According to the hotel helper, the building had a Genie hydraulic lift and a mechanical boom for employees working at heights. The hotel helper stated that his supervisor gave him instructions on a daily basis.
The man testified at his deposition that he could not recall the accident. He stated that he sustained head injury, resulting in pain, memory loss, and dizziness, loss of concentration and impulsiveness, and pain in his shoulders, hips, and knees. The man stated that he walks with a cane, and that he cannot walk alone. The man’s doctors told him that he should not drive because he experiences dizziness and he testified that he has a home attendant three days per week, five hours per day from 2:00 noon to 5:00 P.M. The man from Suffolk stated that he only received instructions from Slip’s chief engineer and he testified that he did see that there was a work lift in the hotel garages. However, the man always used small ladders to perform his work and he always worked alone, and never received any safety instructions.
The man’s wife testified that after the accident, her husband was in intensive care for two months, and later was transferred to a Rehabilitation Institute in New Jersey. In total, his hospitalization and rehabilitation lasted about one year. After about four months, her husband regained partial memory and his husband has problems with concentration, memory, depression, and temperament. He also cannot leave the house unaccompanied because of balance problems.
The Chief Engineer was employed by the hotel and was the man’s supervisor. He oversaw a crew of approximately 11 workers, including the complainant. On the Wednesday or Thursday before the accident, he instructed the man to perform the painting work, which entailed painting the exterior of the building, including the doors, frames, and a portion of the loading dock area. He stated that, the man I told him he had to paint the outside perimeter, basically to paint the doors, the frames, the steels that are rusted. The Chief Engineer did not give the man any other instructions. The man was to work alone and he only received instructions on how to do his work from the Chief Engineer. The Chief Engineer learned of the man’s accident when the hotel helper called him around 10:45 that morning.
The assistant manager testified that there were two Genie lifts available at the site. However, he did not have the authority to supervise the daily activities or work of the man. As part of the easement, the maintenance and repair of the loading docks were shared by the Hotel and Entertainment/Retail units. When the exterior of the building needed to be painted, he contacted the Chief Engineer. The actual maintenance/repair work was performed by the hotel and the costs were shared.
On August 8, 2007, the man commenced an action against the Hotel Corporation and the real estate investment trust company. The complaint asserts causes of action for negligence and violation of Labor Law. Additionally, the man’s wife seeks recovery for loss of services, society, and consortium. On December 6, 2007, the man and his wife commenced an action to seek damages under theories of negligence and under Labor Law.
The evidence shows that the man’s accident arose out of the means and methods of the work, not a dangerous or defective condition on the premises. Significantly, the evidence shows that the man was only supervised by his supervisor.
Although the land owners are liable under the Labor Law, and have shown that they did not supervise the man’s work, they have failed to show that either the real estate investment trust company or the lessee were guilty of some negligence that caused or contributed to the man’s accident. Thus, the land owners and the managing agent are not entitled to common-law indemnification and contribution.
The man and his wife’s motion which seeks summary judgment on the Labor Law claim is granted to the extent that the complainants are granted summary judgment on the issue of liability as against the fee owners of the land where the man acquired his injury. The cross motion which seeks summary judgment to dismiss the man and his wife’s Labor Law claim as against them is denied. The managing agent is dismissed from the action since it did not have an interest in the subject premises at the time of the accident. The man and his wife have not opposed the dismissal of Labor Law negligence. Therefore, the causes of action are dismissed.
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