| Balbuena v New York Stock Exch., Inc. |
| 2007 NY Slip Op 08296 [45 AD3d 279] |
| November 1, 2007 |
| Appellate Division, First Department |
| Franklin Balbuena, Respondent, v New York StockExchange, Inc., Appellant-Respondent, and Regional Scaffolding & Hoisting Co., Inc., et al.,Respondents-Appellants. |
—[*1] Frank H. Wright & Associates, P.C., New York City (Frank H. Wright of counsel), forRegional Scaffolding & Hoisting Co., Inc., respondent-appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Debra A. Adler ofcounsel), for B & C Builders, Inc., respondent-appellant. Napoli Bern Ripka LLP, New York City (Denise A. Rubin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered December 26, 2006,which, in an action for personal injuries sustained when the scaffold on which plaintiff laborerwas standing collapsed, inter alia, granted plaintiff's motion for partial summary judgmentagainst the property owner New York Stock Exchange (NYSE) on the issue of its liability underLabor Law § 240 (1); denied NYSE's cross motion for summary judgment on its crossclaims for contractual indemnification against the scaffolding subcontractor (Regional) andscaffolding subcontractor (B & C); granted Regional's cross motion for summary judgment to theextent it sought dismissal of the complaint as against it and denied such cross motion to theextent it sought summary judgment on Regional's causes of action for contractualindemnification against B & C; and denied, as academic, plaintiff's motion pursuant to CPLR3126 to strike B & C's answer for spoliation of evidence, unanimously modified, on the law, todismiss the Labor Law §§ 200 and 241 (6) claims, and otherwise affirmed, withoutcosts.
NYSE hired nonparty construction manager AMEC to oversee a renovation of its premises;AMEC contracted with Regional to design and erect a scaffold; Regional subcontracted with B &C to physically erect and dismantle the scaffold. During the dismantling process, after removal ofprotective railing and certain steel wiring, plaintiff, an employee of AMEC, used the scaffold towash down internal walls, and fell when a plank, no longer properly secured, overturned.[*2]
No issues of fact exist as to NYSE's liability under LaborLaw § 240 (1). The record establishes that NYSE and AMEC knew that the scaffold was inthe process of being dismantled and was unsafe, and contains compelling, perhaps conclusive,evidence that plaintiff was instructed by his supervisor to use the scaffold in washing down thewalls. There is no evidence that any warning signs were posted, or that plaintiff was informed orotherwise knew that the scaffold was being dismantled, instructed not to use it, or given orinstructed to use any safety equipment (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40[2004]). The court thus properly held that NYSE failed to meet its burden of establishing triableissues of fact that plaintiff's actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 289 n 8 [2003]). There is no merit to NYSE's argument thatplaintiff is solely to blame for the accident because he did not request safety equipment.
Regional designed the scaffold, but subcontracted with B & C to erect and dismantle it. Asthere are no allegations of design defect, and no evidence that Regional exercised supervisorycontrol over the dismantling process, the court properly dismissed plaintiff's claims as against it.
NYSE's and Regional's motions for summary judgment on their respective claims forindemnification were properly denied because, although both established a contractual right toindemnification and the lack of negligence, issues of fact remain as to, inter alia, whetherplaintiff's injury arose out of, resulted from, or was incident to the dismantling of the scaffold orthe performance of other work under Regional's contract with AMEC or subcontract with B & C.
Although the court viewed the remaining Labor Law claims as academic, and did notconsider them, we modify to dismiss them. There is no evidence that NYSE had the supervisorycontrol over the injury-producing activity necessary to support a finding of liability forcommon-law negligence or under Labor Law § 200 (Scott v American Museum of Natural History, 3 AD3d 442, 443[2004]). Nor were there any valid allegations of a violation of the Industrial Code necessary tosupport a claim under Labor Law § 241 (6).
We have considered the parties' remaining arguments for affirmative relief and find themunavailing. Concur—Tom, J.P., Sullivan, Gonzalez and Sweeny, JJ.