| Rivera v Ambassador Fuel & Oil Burner Corp. |
| 2007 NY Slip Op 08290 [45 AD3d 275] |
| November 1, 2007 |
| Appellate Division, First Department |
| Olga-Miranda Rivera et al., Appellants, v Ambassador Fueland Oil Burner Corp. et al., Respondents, et al., Defendant. Holind Realtors, Inc., Third-PartyPlaintiff-Respondent, v Eastmond & Sons Boiler Repair and Welding Services, Inc., Sued Hereinas A.L. Eastmond & Sons, Inc., Third-Party Defendant-Respondent. Ambassador Fuel and OilBurner Corp., Second Third-Party Plaintiff-Respondent, v Eastmond & Sons Boiler Repair andWelding Services, Inc., Sued Herein as A.L. Eastmond & Sons, Inc., Second Third-PartyDefendant-Respondent. |
—[*1] Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn of counsel), forAmbassador Fuel and Oil Burner Corp., respondent. Clausen Miller P.C., New York City (Kimberly A. Hartman, of the Illinois and Marylandbars, admitted pro hac vice, of counsel), for Holind Realtors, Inc., respondent. Conway, Farrell, Curtin & Kelly, P.C., New York City (Jonathan T. Uejio of counsel), forEastmond & Sons Boiler Repair and Welding Services, Inc., respondent.
[*2]Order, Supreme Court, Bronx County (Kenneth L.Thompson, Jr., J.), entered June 9, 2006, which granted summary judgment in favor ofdefendants Ambassador and Holind, and dismissed plaintiff's Labor Law § 241 (6) and§ 200 and common-law negligence claims against them, unanimously modified, on thelaw, summary judgment as to the section 241 (6) claims denied and those claims reinstated;summary judgment to Ambassador on the section 200 claim denied and that claim reinstated; thatportion of the motion by defendants Ambassador and Holind seeking judgment on theirthird-party claims for common-law indemnification denied as premature; and otherwise affirmed,without costs.
Plaintiffs have identified provisions of the Industrial Code (12 NYCRR)—sections23-1.7 (g) and 12-1.9—that are sufficiently specific to support a Labor Law § 241(6) claim, and which apply to the circumstances of this accident (see generally Piazza v Frank L. CiminelliConstr. Co., Inc., 2 AD3d 1345, 1348 [2003]). These provisions, while referring toduties of an employer, do not negate an owner's or contractor's nondelegable responsibility undersection 241 (6) to provide adequate safety protections for workers (see Rice v City ofCortland, 262 AD2d 770, 773 [1999]).
The work performed by plaintiffs involved more than a simple cleaning of a fuel tank, andwas part of a more comprehensive, overall contract for the installation of a new boiler. Based onthese facts, it cannot be said, as a matter of law, that the cleaning of the tank was not related toconstruction (see Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002]).
A worker does not become recalcitrant merely by disobeying a general instruction not to usecertain equipment, if safer alternatives are not supplied (Stolt v General Foods Corp., 81NY2d 918 [1993]; Balthazar v Full Circle Constr. Corp., 268 AD2d 96, 99 [2000]). Theevidence supports a conclusion that, among other things, plaintiffs' decedents were dispatched toa job without an oxygen meter, a crucial piece of equipment necessary to test the oxygen contentand toxicity of a fuel tank prior to cleaning. Thus, any argument that the workers' negligencecontributed to the accident is unavailing.
We agree that plaintiffs' Labor Law § 200 and common-law negligence claims wereproperly dismissed as to Holind, as the mere presence of an owner at the work site, even ifindicative of a general right of inspection, does not create an inference of supervisory control (Matter of New York City AsbestosLitig., 25 AD3d 374 [2006]). Nor is there any evidence that the accident arose from aworkplace condition created by, or known to, Holind, rather than from the contractor's workmethods (id.).
In contrast, the evidence submitted by plaintiffs—that Ambassador, experienced in theboiler/burner business, was aware there was a fuel tank to be cleaned, that such tank was in anunventilated room, that the tank only had two feet of clearance space, and that the tank containedat least 12 inches of sludge—raises factual issues as to Ambassador's control over, andsupervision of, the work site for purposes of plaintiffs' Labor Law § 200 and common-lawnegligence claims (cf. Comes v New York State Elec. & Gas Corp., 82 NY2d 876[1993]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]).
Summary judgment based on common-law indemnification would be premature at this pointin the proceedings, since no allocation could be made prior to the resolution of factual issuesconcerning liability (see Donnelly vTreeline Cos., 13 AD3d 143, 144 [2004]).[*3]
We have considered all remaining arguments and findthem unavailing. Concur—Tom, J.P., Saxe, Gonzalez and Sweeny, JJ.