Wong v. New York Times Co.Wong v. New York Times Co.
Defendants Rockwell Internationаl Corporation and Goss Graphic Systems, Inc., formerly known as Rockwell Graphic Systems, Inc., the Goss Division (collectively Goss) manufactured the printing presses. Goss entered into a sales agreement with the Times for the purchаse and installation of the printing press equipment. Under the agreement, Goss had sole responsibility for the installation of the presses.
By purchase order, Goss retained the services of defendant George R. Hall, Inc., doing businеss as George R. Hall Contracting, for the delivery, rigging and installation of the printing presses. The purchase order provided in relevant part that:
“Subcontractor [Budco] agrees, at its expense, to procure and maintаin such comprehensive general liability, worker’s compensation and other insurance as is reasonable under the circumstances to protect Contractor [Hall] against damages, claims, obligations, liabilities, losses, costs and expense that may arise out of the work to be performed by Subcontractor,and except with respect to such worker’s compensation insurance, such insurance will name Contractor as an additional insured with respect to such work.” Budco obtained liability insurance for itself and named Hall as an additional insured for excess coverage.
Hall in turn contracted with third-party defendant-appellant Budco Enterрrises, Inc. (hereinafter Budco) to supply iron workers to perform the actual installation of the presses. Budco hired plaintiff Kwoksze Wong (hereinafter plaintiff) as an ironworker.
As part of the construction, concrеte was poured as the floor where the printing presses would be installed. When the concrete was poured, a large space — called a press bay — was left open for each printing press. When eaсh printing press was placed, the concrete subcontractor poured the rest of the concrete around it. However, during the time in which the space around the press had not yet been filled in, Vergara (the carpentry subcontractor) placed plywood boards over the open space. The bay was then roped off by perimeter cables. LMB was in charge of removing the plywood before the subcontractоr finished pouring the concrete.
On September 30, 1996, plaintiff and another Budco crewman were working in the area of the press bay, dismantling a crane-like structure known as a gantry, which had been used to load the presses intо the building. Plaintiff was standing on the plywood planking over the press bay, removing cross bracing from the gantry. He was not protected by a safety device other than a hard hat provided by his supervisor. The perimeter cables hаd been removed to facilitate the dismantling. Plaintiff lost his footing while attempting to control a guide rope by which he and his coworker were to haul out the cross brace. Plaintiff fell, dropping approximately 13 feet.
Plаintiff and his wife commenced an action against, inter alia, LMB pursuant to Labor Law §§ 200, 240 and 241. Hall and Goss brought a third-party action against Budco which alleged, inter alia, that Budco had failed to procure insurance for Hall рursuant to the terms of the purchase order. Hall claimed that if any judgment were recovered by plaintiffs against Hall, Budco was responsible for all the “resulting damages” of Hall, including Hall’s liability for plaintiffs’ damages and for Hall’s own legal fees and expenses.
Hall moved for summary judgment on the failure to procure insurance cause of action set forth in the third-party complaint, claiming that it was “entitled to indemnity from and for judgment over and against [Budcо].” The Supreme Court granted
Plaintiffs cross-moved for partial summary judgment against, inter aliа, LMB on the issue of liability. LMB cross-moved for summary judgment dismissing the complaint in its entirety and for dismissal of any cross claims asserted against it. As relates to this appeal, the Supreme Court granted plaintiffs summary judgment against LMB on the Labor Law § 240 (1) claim, denied summary judgment on the Labor Law § 241 (6) claim, and granted summary judgment in LMB’s favor dismissing the Labor Law § 200 claim. However, the court did not specifically state that any cross claims were dismissed.
Budco argues that it complied with the letter of the purchase order by obtaining “reasonable” insurance coverage for Hall, and that the court erred in finding that the excess insurance obtained did not satisfy that obligation. More specifically, Budco maintains that the purchase order did not specify that Budco had to obtain primary coverage, and that therefore it did not breach the agreement to procure insurance. However, Budco’s argument has been squarely rejected by Pecker Iron Works of N.Y. v Traveler’s Ins. Co. (
Budco argues, in the alternative, that its damages are limited to out-of-pocket costs for insurance. Hall maintains that a construction contract is distinguishable from other contracts and, as a mаtter of public policy, Budco should make Hall whole regardless of the existence of its own insurance. In Kinney v G.W. Lisk Co. (
Hall’s attempt to limit Inchaustegui to landlord/tenant cases is unavailing as this Court has calculated damages in construction cases in accordance with Inchaustegui. For example, in Sheppard v Blitman/Atlas Bldg. Corp. (
Accordingly, the Supreme Court properly granted Hall summary judgment on the fifth cause of action of the third-party complaint for breach of the agreement to procure insurance. However, the сourt erred in allowing Hall to recover the full amount of its liability to plaintiffs.
LMB maintains that it played no role in the work for which plaintiff was hired. Indeed, the record reveals that the Times hired LMB solely for the construction of the building. The сontract between the Times and Goss for installation of the printing presses was separate. Under that contract, Goss had sole responsibility for installing the presses. Moreover, plaintiff was hired midjob by Budco, a subcontraсtor of Hall, which was a subcontractor of Goss. Plaintiff had nothing to do with the construction of the building, and LMB, in turn, had nothing to
The Supreme Court nevertheless granted summary judgment to plaintiff against LMB on Labor Law § 240 (1) because LMB, as overseer of the concrete and carpentry subcontractors, was responsible for the plywood-covered gaps in the pressroom floor, on which plaintiff lost his footing. The court also found that plaintiff had a valid section 241 (6) claim based on Industrial Code (12 NYCRR) § 23-1.7 and that “all [defendants are] arguably responsible under this statute.” Accordingly, the court denied both plaintiffs’ and LMB’s cross motions fоr judgment on that claim.
The court should have granted summary judgment to LMB on the Labor Law § 240 (1) and § 241 (6) claims. The court improperly focused on the cause of the injury, instead of the nature of LMB’s relationship to the work in which plaintiff was engаged at the time of the injury (see Campanella v St Luke’s Roosevelt Hosp.,
Finally, the Supreme Court should have dismissed any cоmmon-law contribution and indemnification cross claims and counterclaims asserted against LMB when it granted summary judgment dismissing plaintiff’s Labor Law § 200 claim (see Taylor v V.A.W. of Am.,
We need not reach plaintiffs’ other contentions raised under Labor Law § 240 (1) in light of our determination. Concur— Andrias, J.P., Rosenberger, Lemer, Friedman and Marlow, JJ.