| Tighe v Hennegan Constr. Co., Inc. |
| 2008 NY Slip Op 00980 [48 AD3d 201] |
| February 5, 2008 |
| Appellate Division, First Department |
| Peter Tighe, Respondent, v Hennegan Construction Co.,Inc., et al., Appellants-Respondents, and Liberty Contracting Corp., Respondent-Appellant, et al.,Defendant. |
—[*1] Traub Lieberman Straus & Strewsberry LLP, Hawthorne (Lisa J. Black of counsel), forrespondent-appellant. Hach & Rose, LLP, New York City (Philip Abate of counsel), for respondent.
Order, Supreme Court, New York County (Carol Edmead, J.), entered January 10, 2007,which, to the extent appealed from as limited by the briefs, denied the motion of defendantsHennegan Construction Co., Inc. and DBAB Wall Street, LLC for summary judgment on theircross claims against defendant Liberty Contracting Corp. for common-law and contractualindemnification, granted Liberty's cross motion for summary judgment dismissing Hennegan'sand DBAB's cross claims against it for common-law and contractual indemnification and forbreach of contract, denied Hennegan's motion and Liberty's cross motion for summary judgmentdismissing plaintiff's claims of common-law negligence and violations of Labor Law § 200as against them, and denied Hennegan's motion for summary judgment dismissing plaintiff'sLabor Law § 241 (6) claim predicated on a violation of Industrial Code (12 NYCRR)§ 23-1.7 (e) (2) as against it, modified, on the law, so as to deny Liberty's cross motion forsummary judgment dismissing Hennegan's and DBAB's cross claims against it for contractualand common-law indemnification, grant Hennegan's and DBAB's motion for summary judgmenton their cross claims against Liberty for contractual and common-law indemnification, and grantHennegan's motion for summary judgment dismissing plaintiff's claims of common-lawnegligence and violations of Labor Law § 200 as against it, and otherwise affirmed,without costs.
Plaintiff's claims of common-law negligence and violations of Labor Law § 200should have been dismissed as against Hennegan, the construction manager, because Hennegandid not exercise any control or supervision over the demolition work out of which the injuryarose (see [*2]Singh v Black Diamonds LLC, 24 AD3d 138, 140 [2005]).
However, the claims were properly sustained as against Liberty, the demolitionsubcontractor, as Liberty unquestionably supervised the work out of which the claims arose. Thatthe hazard at issue—debris accumulated as a result of the demolition—was readilyobservable does not absolve Liberty of liability, because the hazard was not inherent in the workbeing performed by plaintiff, an electrician, at the time of the accident (see Bombero v NAB Constr. Corp., 10AD3d 170, 171 [2004]). Similarly, plaintiff's Labor Law § 241 (6) claim predicated on12 NYCRR 23-1.7 (e) (2) was properly sustained as against Hennegan, because the debris wasnot an integral part of the work being performed by the plaintiff at the time of the accident (see Maza v University Ave. Dev.Corp., 13 AD3d 65, 65-66 [2004]).
DBAB, the owner, and Hennegan should have been granted summary judgment on theirclaim for contractual indemnification against Liberty, notwithstanding that the indemnificationrequirement was embodied in an agreement executed after the accident in question, as theysubmitted competent evidence sufficient to establish that the agreement was actually entered intobefore the accident date and that the parties intended that it apply as of when it was entered into,and none of the evidence was controverted by Liberty (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 371[2005]). Furthermore, summary judgment should have been granted to DBAB and Hennegan ontheir claim for common-law indemnification against Liberty, since they were free from activenegligence and Liberty had direct control over the work giving rise to the injury (seeRodriguez v Metropolitan Life Ins. Co., 234 AD2d 156, 156 [1996]).
Finally, we decline to review the court's dismissal of DBAB's and Hennegan's cross claimagainst Liberty for breach of contract based on Liberty's alleged failure to procure insurance, asthat particular issue is not preserved for review. Concur—Lippman, P.J., Mazzarelli,Buckley and Sweeny, JJ.
Andrias, J., dissents in part in a memorandum as follows: While I otherwise agree with themajority, I would further modify the order appealed from to dismiss plaintiff's claims ofcommon-law negligence and violations of Labor Law § 200 as against Liberty ContractingCorp., the demolition subcontractor. Although Liberty unquestionably supervised the work out ofwhich the claims arose, the hazard at issue—sheetrock debris accumulated during theongoing interior demolition work—was "part of or inherent in" the work being performedat the time of the accident (see Bomberov NAB Constr. Corp., 10 AD3d 170, 171 [2004], quoting Gasper v Ford MotorCo., 13 NY2d 104, 110 [1963]). Similarly, plaintiff's Labor Law § 241 (6) claimpredicated on 12 NYCRR 23-1.7 (e) (2) should have been dismissed as against Hennegan,because plaintiff slipped on the accumulation of debris on the floor while stringing temporarylights to make sure the area being demolished was well lit. Unlike the debris in Maza v University Ave. Dev. Corp. (13AD3d 65 [2004]), the case relied upon by the majority, the accumulation of debris here wasclearly an integral part of the work being performed at the time of the accident, and theaccumulation of debris was an unavoidable and inherent result of the ongoing demolition project(see Bond v York Hunter Constr., 270 AD2d 112, 113 [2000], affd 95 NY2d 883[2000]). This is not a situation where the debris was left at the work site overnight or longerwithout being removed (see e.g. Singh vYoung Manor, Inc., 23 AD3d 249 [2005]). There was no evidence that [*3]it was allowed to accumulate over time, as was the case inMaza (13 AD3d at 65).