Ferluckaj v. Goldman Sachs & Co.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 plaintiff‘s
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 plaintiff‘s 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 thrеe months. It further provided for ABM, at the owner’s request, to perform the initial cleaning of all interior windows at no extra charge “[p]rior 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 betweеn 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 threе feet above the floor and extended upward an additional six feet. Plaintiff
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 steр 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 plaintiff‘s motion for summary judgment on her
We modify Supreme Court’s orders to reinstate plaintiff‘s claim against Goldman pursuant to
Indeed, on plaintiff‘s 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 plaintiff‘s 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
For the contract to have had any probative value for purposes of summary judgment, Goldman would have had to establish
Regardless of Goldman’s status, plaintiff‘s
Goldman’s claim against ABM for indemnification was properly dismissed as precluded by
Concur—Mazzarelli, Saxe and Kavanagh, JJ.
Nardelli, J. (concurring). I concur with the result reached by the majority, but I also find that issues of fact exist as to whether plaintiff‘s own acts or omissions were the sole proximate cause of the accident, thereby precluding summary judgment in her favor.
The Court of Appeals has often observed that the purpose of the statute is to protect workers by placing the ultimate responsibility for safety practices where such responsibility belongs, on the owners and general contractors, instead of on the individual workers, who are not in a position to protect themselves (Martinez v City of New York, 93 NY2d 322, 325-326 [1999]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]; Koenig v Patrick Constr. Corp., 298 NY 313, 318 [1948]). Consistent with this objective, the Court of Appeals has stated that the statute places absolute liability upon owners, contractors, and their agents for any breach of the statutory duty which has proximately caused injury and, accordingly, it is to be construed as liberally as necessary to accomplish the purpose for which it was frаmed (Panek v County of Albany, 99 NY2d 452, 457 [2003]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]).
The application of “absolute liability” in
Initially, I agree with the majority’s conclusion that, in view of the recent Court of Appeals decision in Broggy v Rockefeller Group, Inc. (8 NY3d 675, 680 [2007]), the interior window cleaning being performed by plaintiff on the 29th floor of a 40-story office building is expressly afforded protection under
The Court in Broggy, however, went on to state that:
“liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in
section 240 (1) protect against.“The burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff” (id. at 681 [emphasis added]).
In this matter, I find that therе is a plausible view of the evidence, sufficient to raise issues of fact, that no statutory violation occurred, and/or that plaintiff‘s own acts or omissions were the sole cause of the accident. Plaintiff testified that she was aware of the availability of step stools but neglected to request one, and it is unclear if one would have been provided had she so requested. It is also unclear if the section of the desk on which plaintiff was standing, which was located directly in front of the window, could have been removed, or was left in place because it was a convenient platform from which plaintiff could perform her task. What is clear is that the desk did nоt move, shift or wobble, but remained stable. Moreover, plaintiff testified that at the time of her fall off the desk, she was not looking
I disagree with the majority’s conclusion that “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,” for, as the Court of Appeals in Broggy made clear, “[t]he burden of showing thаt an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff” (Broggy, 8 NY3d at 681). Moreover, while the majority succinctly states that a desk does not constitute an adequate safety device, a point with which I agree, the use of a desk to wash windows, depending on the facts presented, also does not, in and of itself, preclude summary judgment in defendants’ favor (see generally Broggy v Rockefeller Group, Inc., 8 NY3d 675 [2007], supra).
I also find this Court’s recent decision in Miro v Plaza Constr. Corp. (38 AD3d 454 [2007]), and the Court of Appeals’ subsequent modification of that decision (9 NY3d 948 [2007]), to be instructive. In Miro, the plaintiff was allegedly injured when he slipped and fell from a ladder that was partially covered with sprayed-on fireproofing material, which purportedly caused him to lose his footing. Plaintiff was aware of the undesirability of the ladder, but failed to request a clean replacement, although it was clear that there was no replacement on the job site and that one would have to have been delivered from an off-site storage area. The three-Justice majority, in dismissing plaintiff‘s section 240 (1) claim, concluded that “a plaintiff who knowingly chooses to use defective or inadequate equipment, notwithstanding being aware that he or she could request or obtain proper equipment, has no claim under
The Court of Appeals modified, reinstated the
Tom, J.P. (dissenting in part). The issue dividing this Court is whether there is any basis under
Defendant Goldman was the tenant of the 29th floor of a building owned by nonparty Paramount Group, Inc. Paramount engaged third-party defendant American Building Maintenance Co. (ABM), plaintiff‘s employer, to perform cleaning services for the building. The 29th floor had been undergoing renovation work by defendant Henegan Construction Co., hired by Goldman. On March 22, 2001, plaintiff was assigned to work overtime by an ABM supervisor. She was directed to proceed to the 29th floor of the building, located at 32 Old Slip Road in Manhattan, to clean interior office windоws. Plaintiff was supplied with only a rag to clean the windows, and she found it necessary to climb onto office desks “to reach the top of the windows.” She sustained injury while “she was cleaning the window in front of her and was moving to the left and fell off the desk on to the floor.”
Plaintiff sought summary judgment as to liability against Goldman and Henegan on her
To recover under
In support of its motion, Goldman submitted thе service contract executed by ABM and Paramount. The contract provides that ABM, as contractor, will perform all window cleaning, encompassing the cleaning of “all interior and exterior windows and frames,” to be performed “every three (3) months.” The contract further states: “Prior to tenant occupancy, contractor shall provide the initial cleaning o[f] all interior windows for which there will be no charge to Paramount Group, Inc. or tenant. Work to be performed upon request of Paramount Group Inc.”
The cleaning service contract unambiguously provides that, at Paramount’s request, ABM will clean all interior windows prior to tenant occupancy. Plaintiff has conceded that, as of the date of her injury, March 22, 2001, Goldman had not yet taken occupancy of the 29th floor. Her supporting affidavit states that Goldman’s employees “moved in their personal items to the 29th floor on March 23 and 24, 2001.” She further restated in her opposition to the cross motion that Goldman’s “employees had not moved into the 29th floor.” Thus, on the motion, plaintiff did not raise any factual issue as to whether the work in which she was engaged at the time of her accident was performed pursuant to ABM’s contract with Paramount requiring a one-time cleaning of the interior windows prior to tenant occupancy.
On its cross motion, Goldmаn also submitted the transcript of deposition testimony given by Robert Barriero, its vice-president for corporate services, to demonstrate that it did not independently order window cleaning services from ABM. Barriero stated that Goldman received “base building cleaning services from Paramount as part of our lease,” which services were provided by Paramount’s vendor, ABM. He noted that Goldman
In her opposition to the cross motion, plaintiff did not address the significance of the contract between Paramount and ABM except to concede that ABM “had been hired by Paramount Group, the owner . . . to do cleaning for the tenants in the building.” Plaintiff also acknowledged that Goldman had directly contracted with ABM for “extra services . . . such as cleaning pantries, stripping and waxing floors and shampooing carpets.” She cited the deposition testimony of Al Hoti, an ABM employee, who stated that the cleaning ABM performed direсtly for Goldman consisted of the activities plaintiff described as well as “cleaning refrigerators [and] providing plastic liners,” presumably for trash receptacles. Thus, the record is clear that any extra cleaning services provided to Goldman by ABM did not include the cleaning of windows.
The dispositive evidence in this matter consists of the testimony of Robert Barriero, Goldman’s vice-president for corporate services, the testimony of Al Hoti, ABM‘s employee, and the contract between ABM and Paramount. Thus, Goldman provided evidence from persons with personal knowledge of the facts to establish that plaintiff was hired by ABM, as agent for the building’s owner, Paramount Grоup. No proof was offered by plaintiff, in rebuttal, to support the intimation that she might have been hired by Goldman or its agent, Henegan. Thus, there is no basis for imposing vicarious liability on Goldman on the ground that plaintiff was hired either by it or by its general contractor.
It should be emphasized that the sole theory of recovery against Goldman advanced by plaintiff before the motion court was that Goldman is an “owner,” as defined under the Labor Law, because it hired Henegan to perform renovation work at the leased premises. Because she was performing cleaning that was “incidental” to Henegan’s construction work, plaintiff reasoned that she is therefore covered by the Labor Law, irrespective of who hired her, and that Goldman is vicariously liable under
Throughout this litigation, plaintiff has never claimed that Goldman is subject to liability under
Plaintiff now obliquely asserts, for the first time on appeal, that “[t]here has been no testimony that Paramount requested the cleaning of the interior windows.” She adds, “Goldman has just made the assumption that Paramount requested the cleaning of the interior windows.” She goes on to state that “Henegan had laborers on site at 32 Old Slip through March 28, 2001,” six days after her accident. Plaintiff intimates that Henegan or Goldman might have requested ABM to аssist in cleaning up the 29th floor, but she points to no evidence to support such a theory.
In view of plaintiff‘s concession that she was employed by ABM and that window cleaning was undertaken just prior to Goldman’s occupancy of the 29th floor, the only explanation for her work on the date of the accident is ABM‘s performance of its contract with Paramount providing for the preoccupancy cleaning of interior windows at the building owner’s request. Goldman therefore demonstrated its prima facie entitlement to summary judgment, placing the burden upon plaintiff to come forward with evidence in admissible form sufficient to raise a triable issue of material faсt (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Although Goldman squarely raised the issue in its opposing papers, plaintiff failed to come forward with any evidence in rebuttal to demonstrate that either Goldman or Henegan had entered into a contract for window cleaning services with ABM. This omission is notable in view of Barriero’s testimony that both Goldman and its agent, Hines, maintained a record of any funding request made in connection with ABM‘s provision of services outside those provided under the lease in accordance with ABM‘s contract with Paramount.
This Court has consistently observed the rule that a party may not “argue on appeal a theory never presented to the court of original jurisdiction” (Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276 [1988], citing Huston v County of Chenango, 253 App Div 56, 60-61 [1937], affd 278 NY 646 [1938]; see e.g. Sean M. v City of New York, 20 AD3d 146, 149-150 [2005]). As stated in Cohn v Goldman (76 NY 284, 287 [1879]), “It is, indeed, а rule, that questions not raised at the trial court, which might have been obviated by the action of the court then, or by that of the other party, will not be heard on appeal as ground of error.” Plaintiff should not be heard to argue, for the first time, that Goldman is liable for her injuries because it might have had the authority to exercise control over the work site, and, indeed, plaintiff makes no such argument.
This is precisely the theory of recovery postulated by the majority on plaintiff‘s behalf, relying on this Court’s decision in Bart v Universal Pictures (277 AD2d 4 [2000]). It should be noted, however, that the lessee in Bart was contractually obligated to control the work site and to ensure that the work was safely performed (id. at 5-6; see also Shun Jian Ke v Hsu & Assoc., 300 AD2d 140 [2002]). There is no proof that Goldman had а contract with ABM for window cleaning services, let alone that Goldman was under a contractual obligation to ensure the safety of the work site. Moreover, the majority has cited no case in which liability under
The majority takes the position that the еvidence is insufficient to entitle Goldman to summary judgment dismissing
That the window cleaning work was performed pursuant to the agreement between ABM and Paramount is confirmed by explicit contract language. It is further supported by Barriero’s testimony that Gоldman was obligated under its lease to use ABM’s services. Barriero and Hoti both stated that supplemental cleaning services provided directly to Goldman by ABM did not include window cleaning. Thus, there is both documentary and testimonial evidence supporting Goldman’s contention that plaintiff‘s presence at the work site was due to ABM‘s obligation to provide initial cleaning of interior windows under its contract with the building owner.
While the opponent of a summary judgment motion may normally offer an excuse for the failure to present opposing proof in admissible form (Zuckerman, 49 NY2d at 562), where the opposing party has likewise moved for summary judgment, this option is unavailable. By moving for an accеlerated disposition, plaintiff represented that the record proof was sufficient to warrant judgment in her favor. As this Court observed in News Am. Mktg., Inc. v Lepage Bakeries, Inc. (16 AD3d 146, 149 [2005]): “By moving for accelerated judgment, a party submits the case for disposition on the record evidence, and the propriety of the court’s decision will be reviewed on the basis of that same evidence. It is settled that an appellate court is bound by the record (Block v Nelson, 71 AD2d 509 [1979]), and, absent mat-
Finally, plaintiff has not proffered any excuse for her failure to submit admissible opposing evidence in opposition to the cross motion to warrant trial of an issue of fact. Thus, she has offered neither proof to controvert Goldman’s evidence demonstrating that she performed window cleaning in accordance with Paramount’s contract with her employer nor an excuse for her failure to do so, and her opposition fails to meet the requirements to defeat a motion for summary judgment (Zuckerman, 49 NY2d at 562). The intimation that Goldman might have directly hired ABM to do unspecified cleaning work, for reasons not even suggested, is speculative and does not suffice to meet her obligation “to submit evidentiary facts or materials, by affidavit or otherwise, rebutting the prima facie showing . . . and demonstrating the existence of a triable issue of ultimate fact” (Indig v Finkelstein, 23 NY2d 728, 729 [1968]). It is settled that “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman, 49 NY2d at 562).
Accordingly, plaintiff failed to rebut Goldman’s prima facie showing that it did not hire her employer to perform window cleaning work, and her