| Fiorentino v Atlas Park LLC |
| 2012 NY Slip Op 03510 [95 AD3d 424] |
| May 3, 2012 |
| Appellate Division, First Department |
| Phillip Fiorentino et al., Respondents, v Atlas Park LLC etal., Respondents, and Sage Electrical Contracting, Inc., Appellant. Plaza Construction, Inc.,Third-Party Plaintiff-Respondent, v Donaldson Acoustics, Co., Third-PartyDefendant-Appellant. |
—[*1] McGaw, Alventosa & Zajac, Jericho (Dawn C. DeSimone of counsel), for DonaldsonAcoustics, Co., appellant. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for Fiorentinorespondents. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel),for Atlas Park LLC, Plaza Construction Corporation and Plaza Construction, Inc.,respondents.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered April 26, 2011,which, to the extent appealed from as limited by the briefs, granted defendants Atlas Park LLC's(Atlas) and Plaza Construction Corporation's (Plaza) motion for summary judgment dismissingplaintiffs' Labor Law § 200 and common-law negligence claims as against them, grantedAtlas's and Plaza's motion for summary judgment on their claims for contractual andcommon-law indemnification against defendant Sage Electrical Contracting, Inc. (Sage) andthird-party defendant Donaldson Acoustics, Co. (Donaldson), conditionally, and deniedDonaldson's motion for summary judgment on its claim for common-law indemnification againstSage, unanimously modified, on the law, to the extent of granting Atlas's and Plaza's motion as totheir contractual [*2]indemnification claims against Sage andDonaldson, unconditionally, granting Donaldson's motion as to its common-law indemnificationclaim against Sage and denying Atlas's and Plaza's motion as to their common-lawindemnification claim against Donaldson, and otherwise affirmed, without costs.
In this personal injury action, plaintiff seeks damages for injuries he sustained while workingon a construction project on April 6, 2006 in the basement of the premises located at 8000Cooper Avenue in Queens. Defendant Atlas owned the premises and contracted with defendantPlaza as general contractor. Plaza contracted with defendant Sage as an electrical subcontractoron the project and defendant Donaldson, plaintiff's employer, as a carpentry subcontractor.Donaldson's foreman supervised plaintiff's work. Plaintiff testified that, while he was working onthe project, he never had any contact with anyone from Plaza and he never heard of a companynamed Atlas.
At the time of the accident, plaintiff was standing on a Baker scaffold, approximately threefeet from the ground, installing acoustic ceiling tiles into a metal grid. As he was installing anexit sign tile, he noticed a BX cable, an armored electrical cable, dangling from the ceiling.While he had one hand holding the metal ceiling grid, plaintiff grabbed the cable with his otherhand to push it back into the ceiling so that he could feed it through the slot that he created in theceiling tile. As he grabbed the cable, he received an electric shock. He was unable to let go of thecable until his coworker Richie Robbins pushed the scaffold out from under him.
In April 2007, plaintiff and his wife commenced this action against Atlas, Plaza and Sage, byfiling a summons and complaint, alleging causes of action based on Labor Law § 240 (1),§ 241 (6), § 200 and common-law negligence. Atlas and Plaza answered andasserted cross claims against Sage for contractual indemnification and contribution. Atlas andPlaza also commenced a third-party action against Donaldson. Although the third-partycomplaint asserted two causes of action based on contractual indemnification, the final paragraphof the third-party complaint demanded judgment against Donaldson for contractual andcommon-law indemnification.
In July 2010, Atlas and Plaza moved for summary judgment dismissing plaintiffs' claims andall cross claims against them, on their cross claims against Sage for contractual and common-lawindemnification, attorneys' fees and costs, and on their third-party claims against Donaldson forcontractual indemnification, attorneys' fees and costs. In August 2010, Sage cross-moved forsummary judgment dismissing plaintiffs' Labor Law § 240 (1), § 241 (6), §200 and common-law negligence claims against it, and dismissing codefendants Atlas's andPlaza's cross claims for indemnification, and third-party defendant Donaldson's cross claim forindemnification. In September 2010, Donaldson also cross-moved for summary judgment,dismissing the plaintiffs' Labor Law § 240 (1) and § 241 (6) claims, as well as Sage'scross claims for common-law indemnification, and Atlas's and Plaza's claims for contractual andcommon-law indemnification, attorneys' fees and costs against Sage.
By order entered April 26, 2011, the motion court dismissed the Labor Law § 200claims as against Atlas and Plaza, finding that they did not have the requisite supervision andcontrol over plaintiff's work, and granted similar relief to Sage, determining that it was neither anowner nor a general contractor. The court denied that portion of Sage's motion seeking dismissalof the common-law claims against it. The court denied Atlas's and Plaza's motion to dismissplaintiffs' Labor Law § 241 (6) claim based upon the violation of 12 NYCRR 23-1.13, butgranted that portion of Sage's cross motion to dismiss the Labor Law § 241 (6) claim.
As to the indemnification issues, the court conditionally granted Atlas's and Plaza's motion[*3]as to contractual and common-law indemnification againstSage and Donaldson, pending a finding of negligence. Reasoning that factual issues remained,the court denied Sage's cross motion to dismiss Atlas's, Plaza's and Donaldson's cross claims forindemnification and Donaldson's cross motion for common-law indemnification against Sage.
We reject Atlas's and Plaza's argument that Sage has no right to appeal from the part of theorder that granted their motion for summary judgment dismissing the Labor Law § 200 andcommon-law negligence claims as against them. Sage is aggrieved by that determination(see CPLR 5511) insofar as it precludes Sage from asserting claims for indemnificationor contribution against Atlas and Plaza (see Urbina v 26 Ct. St. Assoc., LLC, 12 AD3d 225 [2004]).
In any event, an owner or general contractor will not be liable under Labor Law § 200for injuries that arise out of the manner or method of work unless it had the authority to superviseor control that work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998];Urban v No. 5 Times Sq. Dev.,LLC, 62 AD3d 553, 556 [2009]). Contrary to Sage's argument, that Plaza or its sitesafety inspector had the authority to stop the work if he observed a subcontractor engaging in anunsafe activity is insufficient to establish the requisite supervision or control (see Hughes v Tishman Constr. Corp.,40 AD3d 305 [2007]). That Plaza expedited the work does not establish that it supervisedand controlled the manner in which the work was performed (see Foley v Consolidated Edison Co. of N.Y., Inc., 84 AD3d 476,477 [2011]).
Because the Labor Law § 200 and common-law negligence claims (as well as theLabor Law § 240 [1] claim) were dismissed against them, Atlas's and Plaza's only liability,if any, would be vicarious under Labor Law § 241 (6). Accordingly, they are entitled toenforce the indemnification provisions in their contracts with Sage and Donaldson (see Macedo v J.D. Posillico, Inc., 68AD3d 508, 510-511 [2009]).
These contracts provide that Sage and Donaldson will indemnify Atlas and Plaza for "[a]nyaccident or occurrence which happens, or is alleged to have happened, in or about the placewhere such Work is being performed or in the vicinity thereof (a) while the Subcontractor isperforming the Work, either directly or indirectly through a Subcontractor or material agreement,or (b) while any of the Subcontractor's property, equipment or personnel are in or about suchplace or the vicinity thereof by reason of or as a result of the performance of the Work." Becauseit is undisputed that plaintiff was performing work on behalf of Donaldson at the time of hisaccident and that Sage still had property, equipment or personnel in the place, Atlas and Plaza areentitled to unconditional summary judgment on their contractual indemnification claims.
To the extent Atlas, Plaza and Donaldson seek common-law indemnification from Sage, weaffirm that part of the motion court's order that granted this relief to Atlas and Plaza, and wereverse that part of the order that denied the same relief to Donaldson. Indeed, the evidence in therecord demonstrates that Atlas, Plaza and Donaldson established their prima facie entitlement tosummary judgment on the issue of common-law indemnification against Sage (see Martins v Little 40 Worth Assoc.,Inc., 72 AD3d 483 [2010]). Contrary to the motion court's holding, Sage failed to raisean issue of fact in opposition.
The following facts are undisputed: Sage installed the BX cable that was involved in theaccident, Sage was contractually responsible for "safing off"[FN*]any energized BX cables, and the [*4]BX cable involved in theaccident was neither "safed off" with a wire nut nor marked with warning tape. Further, Sage wasresponsible for connecting and disconnecting the electricity in the area where plaintiff wasinjured, Sage was not required to obtain Plaza's permission before installing permanent power inthe building where plaintiff was injured and Sage was not required to notify Plaza when it turnedon a circuit breaker, like the one that powered the BX cable involved in the accident.
In opposition to Donaldson's cross motion, Sage asserted that an issue of fact existed as towhether the BX cable was properly "safed off." It argued that, based on its project manager EricGil's testimony, Sage had "safed off" the BX cable. However, Gil merely testified that Jim Liotta,Sage's foreman, understood that "the cable was somehow disrupted by somebody or somehow,"and that "it was safed off and tied up . . . and that somehow, it must have [come]loose." Thus, Gil had no personal knowledge as to the condition of the BX cable prior to theaccident. Accordingly, his testimony was insufficient to raise an issue of fact. The motion courtreasoned that Gil's testimony conflicted with the testimony of Donaldson's foreman, EricAnderson, who stated that he could tell from looking at the BX cable involved in the accidentthat "it was not safed off," because "the wires were spliced and there were no wire nuts on them."However, Anderson's testimony was based on his personal knowledge.
Moreover, Sage and Donaldson understood that the project would be constructed on a fasttrack basis and that they would work overtime and even out of sequence. Sage and Donaldsonwere also contractually bound to use their best efforts to complete the work expeditiously. Thus,Sage's argument in opposition to Atlas's and Plaza's motion that Plaza played a role in plaintiff'saccident, because of its failure to coordinate properly the various subcontractors' work on theproject, including requiring Sage and Donaldson to perform some of the work out of sequence, isunsupported by the record.
Finally, although the last paragraph of Atlas's and Plaza's third-party complaint contained areference to a common-law indemnification claim against Donaldson, their motion sought reliefonly as to their contractual indemnification claim. It appears that the motion court grantedsummary judgment on Atlas's and Plaza's common-law claim for indemnification againstDonaldson inadvertently as they did not request this relief, and this relief is not available here.Workers' Compensation Law § 11 bars common-law indemnity against Donaldson,plaintiff's employer, because the injuries claimed do not meet the statutory definition of "grave"injury (see Acosta v Green Mgt. Corp., 267 AD2d 67, 68 [1999]). The statute does not,however, bar contractual indemnification where the employer has a contract with the third party,prior to the accident, in which it agreed to indemnify for an employee's loss (id.).Concur—Gonzalez, P.J., Sweeny, Moskowitz, Renwick and Richter, JJ.
Motion to adjourn appeal denied. [Prior Case History: 2011 NY Slip Op31057(U).]
Footnote *: "Safing off" a BX cable involves"skinning" the metal jacket of the wire back and then capping the wire with a rubber wire nut.