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Reddy v. Ed-Sand Realty Corp.12/17/2003
This opinion is uncorrected and will not be published in the printed Official Reports.
I. The Relevant Facts
The plaintiff Michael Reddy ("Reddy") was employed as a plumber by Lakeside Technical Enterprises, Inc. ("Lakeside"). On May 30, 1998, he was working at a premises owned by the defendant Ed-Sand Realty Corp. ("Ed-Sand"), which had leased the premises to the defendant Paine Webber, Inc./UBS Paine Webber, Inc. (collectively, "Paine Webber"). In this action, Reddy seeks damages for personal injuries based upon theories of common-law negligence and violations of Labor §§ 200, 240 and 241 .
A. The Written Contracts
Paragraph 85 and Exhibit A of the Ed-Sand/Paine Webber lease rider provides, inter alia, that Ed-Sand, at its sole cost and expense, would perform roof repairs to ensure that the premises was leak-free. Pursuant to paragraph 43 of the lease rider, Ed-Sand was to remain liable for all structural repairs, unless the repair resulted from Paine Webber's negligence or willful misconduct. Paine Webber was permitted to make initial interior alterations. Pursuant to paragraph 56 of the lease rider, Paine Webber was to indemnify Ed-Sand for all personal injury claims in connection with the use and possession of the premises, other than claims occasioned by Ed-Sand's negligence or that of Ed-Sand's agents, employees, representatives or contractors.
Paine Webber hired the defendant Interior Architects, P.C. ("Architects") to design the interior alterations, and to obtain bids from general contractors. Pursuant to the Paine Webber/Architects contract, during the "Contract Administration Phase," Architects was to make periodic visits to ensure that the work was performed in accordance with contract documents, but was not responsible for any of the general contractor's construction means, methods or safety procedures.
Paine Webber hired the defendant Paladium Building Inc. ("Paladium"), as general contractor. Pursuant to sections 10.2.1 and 10.2.6 of the Paine Webber/Paladium contract, Paladium was to take all reasonable precautions for the safety of employees, and appoint a superintendent whose duty at the site was the prevention of accidents. Pursuant to section 3.18.1, Paladium agreed to indemnify Paine Webber and Architects for all claims, damages, losses and expenses, including attorney's fees, arising out of the performance of Paladium's work or the work of Paladium's subcontractors.
Paladium hired the defendant John Aiosa Plumbing & Heating Corp. ("Aiosa") as a subcontractor and, through a purchase order, also subcontracted with Lakeside. One term and condition of the Paladium/Lakeside purchase order was that Lakeside agreed to indemnify Paladium and the owner of the building for all liability arising out of the performance of the purchase order, whether the injuries were due to Lakeside's negligence, Paladium's negligence or any other reason.
In his complaint, Reddy alleges that during the course of the installation of a roof drain, he picked up a cast iron pipe and carried it up a ladder, from which he fell. Following the service of the complaint, Reddy served a bill of particulars alleging violations of New York State Industrial Code §§ 23-1.5 and 23-1.21. In response, the defendants cross-claimed against one another seeking common-law and/or contractual indemnification, and Paladium and Paine Webber, respectively, commenced a third-party action and second/third-party action against Lakeside.
B. Examinations Before Trial
During his examination before trial ("EBT"), Reddy stated that on the day of the accident, he was supposed to hang a roof drain pipe and was workin
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