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Public Utility Law gives right to indemnification; Court grants summary judgment on indemnity and dismisses Labor Law claims

Bucci v. City of New York, et al., Index 34069/2019E (Sup.Ct. Bronx City. Sept. 26, 2022)

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An Order granting summary judgment to the City of New York may reshape the landscape for landowners and the public utilities who enter their property to do work.

In a Decision and Order dated September 26, 2022, New York Supreme Court Justice Lucinda Suarez granted the motion of defendants City of New York and Hunts Point Terminal Produce Market for summary judgment dismissing negligence and Labor Law claims against them, but also granting summary judgment in their favor on their statutory indemnification claim against Verizon New York, Inc.

The claims arose out of an accident at the Hunts Point Terminal Produce Market, located in Bronx, New York. Plaintiff was an employee of Verizon and was on the property to install fiberoptic cables for the company. This involved running exterior steel "strands" over a street open to vehicular traffic, from the roof of a building to a nearby underpass. At first, plaintiff was tasked with controlling traffic while others tightened the strands to remove slack in the lines. During that stage a truck passed along the road and came into contact with the strands. Plaintiff stopped the truck driver, the strands were freed, the truck left the scene, and work proceeded. When the strands were tightened the slack was removed and the strands rose above the roadway. The Plaintiff then climbed aboard an aerial bucket to complete the installation of the strands, working at about 13 feet above the street level. Along came the same truck driver once more in his truck which now caught the elevated strands. This time, with tension in the lines, the strands were caused to detach from the building facade and strike plaintiff in the arm and face. Plaintiff subsequently commenced an action seeking damages for bodily injuries, asserting claims under New York Labor Law sections 200, 240 and 241(6) against the City of New York and Hunts Point, and for negligence against the truck driver and the owner of his vehicle. City and Hunts Point impleaded the plaintiff's employer, Verizon, seeking contribution and indemnity. Plaintiff moved for summary judgment, and City and Hunts Point cross-moved seeking summary judgment dismissing claims against them and in their favor on their third-party indemnity claims against Verizon.

The court denied plaintiff's motion and granted the defendants' motion in its entirety dismissing the Labor Law and negligence claims. Plaintiff had not established prima facie a violation of Labor Law 240(1) because there was no evidence that the accident resulted from the failure to provide proper protection against harm directly flowing from the application of 'the force of gravity to an object or person', as the statute requires. "Rather the subject accident resulted from a horizontal force, the propulsion of the strands and clamps by the tension created on the strands by the truck striking it." (Decision, p. 4). Plaintiff's Labor Law 241(6) claim also failed. That claim was premised upon Industrial Code 12 NYCRR section 23-1.29(a), which requires work being performed over a street to be either fenced or barricaded or else that the traffic be controlled by designated persons. However, plaintiff conceded that he was the person designated to direct traffic, thus he had not established prima facie a violation of section 241(6). His Labor Law 200 claim failed as there was no evidence that the defendants supervised or controlled the work or had actual or constructive notice of the condition of the strands. Plaintiff established his negligence claim against the vehicle owner and driver with evidence that the truck failed to stop at a stop sign.

The court went further, granting summary judgment to the City of New York on its indemnification claim against Verizon under the Public Service Law. Section 228(1)(a)(3) of that statute provides that "No landlord shall ...  interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require ... that the cable television company agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities." Verizon argued that it had no duties under the statute and, in the alternative, enforcement of the provision in this instance would violate New York General Obligations Law section 5-322.1, which makes void and unenforceable "A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part." The City, it argued, could not obtain indemnity for damages caused by the City's own negligence.

The court disagreed with Verizon, finding, "a plain reading of Public Service Law sec. 228(1)(a)(3) statutorily required Verizon to indemnify NYC as it was uncontroverted that damage (i.e., the underlying accident) resulted from Verizon's installation of fiberoptic cables at NYC's property." The court had determined that the City was free of negligence, so the General Obligations Law did not apply.

This decision will have an impact upon the range of work done by public utilities on property owned by others because it makes the operation of the Public Service Law an important element of the distribution of risks for accidents caused by that work. This Decision adds to property owners' protections against liability for accidents occurring on their property in connection with the work of public utilities.

AGF&J partner Steven Disiervi and associate James Brown briefed and argued the motion on behalf of the City of New York and Hunts Point. If you have any questions or wish to receive a copy of the decision, please contact Steven DiSiervi at sdisiervi@agfjlaw.com.

Attorneys

Steven DiSiervi

Practice Areas

Premises Liability