Hughes v. Tishman Construction Corp.Hughes v. Tishman Construction Corp.
James Hughes et al., Respondents, v Tishman Construction Corp. et al., Defendants, and Tishman Westside Construction, LLC, et al., Appellants. (And a Third-Party Action.)
[836 NYS2d 86]
Order, Supreme Court, New York County (Richard F. Braun, J.), entered October 21, 2005, which, insofar as appealed from, denied those aspects of the motion of defendant Tishman Westside Construction for summary judgment dismissing plaintiffs’ causes of action based on common-law negligence and
On April 10, 2001 plaintiff James Hughes, a concrete laborer, was working on a construction project near Times Square. Hughes was employed by P.M. Sorbara (Sorbara), a subcontractor on the project. On that date, Hughes and his coworkers were spreading concrete on the 14th floor of a building that was under construction. The concrete was pumped up to that floor from the street below by a truck owned by defendant A & B Preferred Concrete Pumping Service (A & B), which had leased the vehicle to Sorbara. The concrete reached the 14th floor through a series of pipes leading from the truck to the 14th floor. Pressure in the pipes was regulated by gauges on the truck controlled by the operator of the truck. A hose attachment was inserted at the laborers’ end of the pipes that allowed the laborers to spread the concrete. Hughes sustained personal injuries when pressure from the hose caused the hose to “whip[]” around and strike another worker, who fell onto Hughes. The incident occurred while Hughes and several of his coworkers were attempting to remove an obstruction from the pipes.
Hughes, and his wife derivatively, commenced this action
Where a claim under
Essen, Tishman’s project superintendent, testified that his job was to “[o]versee all job site activities as it [sic] pertains to the schedule and conformance of plans and specifications,” and
The conclusion that Tishman did not control the manner in which Hughes performed his work is buttressed by the following passage from Hughes’ deposition:
“Q: When [Iannotta] was yelling for every one to hurry up and get the machine unclogged, did he tell you how to unclog the machine?
“A: No.
“Q: Has he ever told you how to go about doing your job?
“A: No, he is just a super that pushes the work.
“Q: Whom did you take orders from while you were at the job, who is your boss?
“A: My boss was [a foreman for Sorbara]. . . .
“Q: On the date of the accident, when you went about your job responsibilities, you testified before that the only person who supervised you was [a foreman for Sorbara]; is that correct?
“A: Yes.”
Further evidence that Tishman did not control the manner in which Hughes and his coworkers performed their work is provided by the deposition testimony of Lawrence Rizzo, a site safety manager employed by Site Safety, LLC (Site Safety), the construction site safety coordinator. During his deposition, Rizzo gave the following testimony:
“Q: While you were at the [site], did you ever personally observe or overhear [Essen] or [Iannotta] or anyone from Tishman instruct a contractor such as Sobarra [sic] on the means and methods of their work?
“A: For clarification when you say means and methods, referring [sic] if they saw something is—that they didn’t like and they wanted changed; what are you asking?
“Q: How to actually do the work?
“A: No.
“Q: Specifically with respect to the pouring of concrete or pumping out of concrete, did you observe or overhear them telling the contractors how to pour or pump the concrete?
“A: No, sir. . . .
“Q: For clarification, you asked counsel to clarify the question. Were there times that you observed . . . [Iannotta] or . . . Essen say something when they didn’t like the manner which the work was performed to take corrective action?
“A. Talking on a safety issue?
“[Counsel for Tishman]: Note my objection.
“Q: Yes.
“A. He then would address as [sic] anyone would. As to method or means how to do it, I want you to pour this way, this way, no. However doing it, they were doing it. If a question of a safety issue, they would be addressed then. What are you doing? Why are you doing it this way? You know, to that effect. Don’t tell them how to frame it or how to pour it . . . .
“Q: But did you see them address a safety issue?
“A: If there was a safety issue, I saw them address it.”3
Moreover, Site Safety, which Tishman hired to comply with Administrative Code of the City of New York § 27-1009 (d),4 did not control the manner in which Hughes performed his work.
At bottom, the evidence submitted in support of Tishman’s motion demonstrates that Tishman only exercised general supervisory powers (O’Sullivan, supra; Cahill, supra; Singh, supra; Dalanna, supra; Reilly, supra; see Maes v 408 W. 39 LLC, 24 AD3d 298 [2005], lv denied 7 NY3d 716 [2006]; Dos Santos v STV Engrs., Inc., 8 AD3d 223 [2004], lv denied 4 NY3d 702 [2004]; Vasiliades v Lehrer McGovern & Bovis, 3 AD3d 400 [2004]), and plaintiffs, in opposition, failed to raise a triable issue of fact.
Supreme Court properly denied those aspects of A & B’s cross motion seeking summary judgment dismissing plaintiffs’ causes of action under
Saxe and Buckley, JJ., dissent in part in a memorandum by Saxe, J., as follows: The majority modifies the order on appeal so as to grant summary judgment to defendant Tishman Westside Construction with respect to claims against it for common-law negligence and under
Plaintiff, a concrete laborer employed by P.M. Sorbara, was seriously injured on April 10, 2001 during the pouring of concrete on the 14th floor of the building under construction at 270 West 44th Street in Manhattan. The accident occurred when the hose leading from a concrete pump truck on the street below became clogged. In an effort to clear the hose, it was disassembled prematurely, prior to the release of pressure that had built up in it, causing it to violently swing around and strike plaintiff and another employee.
Plaintiff testified that a construction superintendent, Simone Iannotta, who worked for construction manager Tishman, was present at the time the hose clogged, supervising the work, and was yelling for the workers to “hurry up” in clearing the jammed hose. Plaintiff specifically stated that Iannotta’s yelling for the concrete workers to hurry up caused him to feel pressured to get the job done quickly, particularly since he knew that the concrete could not be sitting at street level for more
Tishman also retained Site Safety, LLC to supervise the contractors and make certain that they complied with all safety regulations. A full-time site safety manager was to be present at the job at all times, safety meetings were held periodically, and the site safety manager made daily entries in a site safety log. The site safety manager, Lawrence Rizzo, Jr., testified that he observed construction superintendent Iannotta and project manager Dean Essen overseeing the work, and, indeed, observed Iannotta and Essen change the manner in which work was being performed on a daily basis if they thought it was being performed incorrectly.
An owner or contractor may only be held liable for an injury under
The majority concludes that Tishman established as a matter of law that it did not exercise supervision or control over the work, in that the means and methods of the concrete work was exclusively controlled by plaintiff’s employer, Sorbara, as demonstrated by plaintiff’s testimony that all orders with respect to the concrete work came from the Sorbara supervisor. The majority quotes at length the testimony of witnesses indicating that Tishman did not direct or control the work of Sorbara or A & B, and that Sorbara controlled the concrete work.
However, it is not the strength of Tishman’s showing that is at issue; the question is whether plaintiff’s evidence created a question of fact on the issue of whether Tishman exercised supervision and control over the work. I disagree with the majority‘s conclusion that plaintiff failed to offer evidence creating a question of fact on that issue. First, although Site Safety’s witness, Rizzo, asserted that Sorbara’s means and methods of pouring concrete were not supervised or controlled by Tishman, he also stated that he observed Iannotta and Essen instruct workers on a daily basis to change the manner in which the work was being performed. Second, as the IAS court recognized, when the construction manager’s superintendent yells at workers to hurry up, and the workers feel pressured to act quickly in response, it is possible to infer that the superintendent has the authority to direct them, and, indeed, to take action against them should the workers disobey his commands. Third, Tishman hired a safety manager empowered to stop the work. These circumstances, together with all appropriate possible inferences, are sufficient to raise an issue of fact as to Tishman’s supervision and control over the concrete work. Accordingly, I would deny Tishman’s motion for summary judgment.