| Balbuena v New York Stock Exch., Inc. |
| 2008 NY Slip Op 02204 [49 AD3d 374] |
| March 13, 2008 |
| 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] Napoli Bern Ripka LLP, New York City (Denise A. Rubin of counsel), for FranklinBalbuena, respondent. 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 (Michael L. Boulhosa ofcounsel), for B & C Builders, Inc., respondent-appellant.
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 liabilityunder Labor Law § 240 (1); denied NYSE's cross motion for summary judgment on itscross claims 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, togrant NYSE's and Regional's cross motions to the extent they sought summary judgment on theirrespective cross claims for contractual indemnification, and to dismiss the Labor Law§§ 200 and 241 (6) claims, and otherwise affirmed, without costs.
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 [*2]AMEC, used the scaffold to wash down internal walls, and fellwhen a plank, no longer properly secured, overturned.
No issues of fact exist as to NYSE's liability under Labor Law § 240 (1). The recordestablishes that NYSE and AMEC knew that the scaffold was in the process of being dismantledand was unsafe, and contains compelling, perhaps conclusive, evidence that plaintiff wasinstructed by his supervisor to use the scaffold in washing down the walls. There is no evidencethat any warning signs were posted, or that plaintiff was informed or otherwise knew that thescaffold was being dismantled, instructed not to use it, or given or instructed to use any safetyequipment (cf. Cahill v TriboroughBridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). The court thus properly held thatNYSE failed to meet its burden of establishing triable issues of fact that plaintiff's actions werethe sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,289 n 8 [2003]). There is no merit to NYSE's argument that plaintiff is solely to blame for theaccident 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.
The motion court erred, however, in denying NYSE's and Regional's cross motions forsummary judgment on their respective cross claims for contractual indemnification. Although thecourt properly found that both parties had established a contractual right to indemnity and a lackof negligence, it incorrectly found issues of fact regarding whether plaintiff's injury arose out of,resulted from or was incidental to the work required under the relevant contracts, i.e., the erectionand dismantling of the scaffold. To the contrary, the record indisputably shows that plaintiff'sinjury was caused, at least in part, by his presence on the partially dismantled scaffold. Thus,under any fair reading of the subject indemnity provisions, plaintiff's injury either arose out of,was incidental to, or resulted from, the work of erecting or dismantling the scaffold. Contrary toRegional's and B & C's argument, it is not necessary that plaintiff himself be actively engaged inthe type of work covered by the indemnity contract in order for such injury to fall within thisbroadly worded indemnification provision (Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271 [2007] [lesseeentitled to contractual indemnification from drywall contractor where plaintiff's injury "arose outof" drywall contractor's work, even though plaintiff was performing electrical work at time ofinjury]).
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., Gonzalez, Sweeny and Catterson, JJ.
Reargument granted and, upon reargument, the decision and order of this Court entered onNovember 1, 2007 (45 AD3d 279 [2007]) recalled and vacated and a new decision and ordersubstituted therefor.