| Nasuro v PI Assoc., LLC |
| 2008 NY Slip Op 02804 [49 AD3d 829] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Wlodzimierz Nasuro et al., Respondents, v PI Associates,LLC, et al., Appellants, New York Pre-Cast, Inc., et al., Respondents, et al.,Defendants. |
—[*1] White, Quinlan & Staley, LLP, Garden City, N.Y. (Eileen Farrell of counsel), fordefendant-respondent New York Pre-Cast, Inc. Brody, O'Connor & O'Connor, Northport, N.Y. (Scott A. Brody and Aisha K. Brosnan ofcounsel), for defendant-respondent New York Steel Fabricators, Inc.
In an action to recover damages for personal injuries, etc., the defendants PI Associates,LLC, PI Development, LLC, and Maric Plumbing & Heating, Inc., appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), enteredOctober 26, 2006, as granted that branch of the plaintiffs' motion which was for summaryjudgment on the Labor Law § 240 (1) cause of action insofar as asserted against thedefendant Maric Plumbing & Heating, Inc., and denied those branches of the cross motion of thedefendant Maric Plumbing & Heating, Inc., which were for summary judgment dismissing thecauses of action based on Labor Law § 240 (1) and § 200, and on common-lawnegligence insofar as asserted against it.
Ordered that the appeal by the defendants PI Associates, LLC, and PI Development, LLC, isdismissed, without costs or disbursements, as they are not aggrieved by the order (seeCPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant Maric [*2]Plumbing & Heating, Inc., with one bill of costs to the respondentsappearing separately and filing separate briefs.
"A prime contractor hired for a specific project is subject to liability under Labor Law§ 240 as a statutory agent of the owner or general contractor only if it has been 'delegatedthe . . . work in which plaintiff was engaged at the time of his injury,' and istherefore 'responsible for the work giving rise to the duties referred to in and imposed by [thestatute]' " (Coque v Wildflower EstatesDevs., Inc., 31 AD3d 484, 488 [2006], quoting Russin v Louis N. Picciano &Son, 54 NY2d 311, 318 [1981]). "[T]he nondelegable liability imposed by Labor Law§ 240 (1) attaches only to a contractor that has the authority to supervise or control theparticular work in which the plaintiff was engaged at the time of his injury" (Coque vWildflower Estates Devs., Inc., 31 AD3d at 488; see Kwoksze Wong v New York TimesCo., 297 AD2d 544 [2002]; Sabato v New York Life Ins. Co., 259 AD2d 535 [1999];Velez v Tishman Foley Partners, 245 AD2d 155 [1997]; D'Amico v New YorkRacing Assn., 203 AD2d 509 [1994]). "Once an entity becomes an agent under the LaborLaw it cannot escape liability to an injured plaintiff by delegating the work to another entity"(McGlynn v Brooklyn Hosp.-Caledonian Hosp., 209 AD2d 486, 486 [1994]). Here, theevidence established, as a matter of law, that the defendant Maric Plumbing & Heating, Inc.(hereinafter Maric), the prime plumbing contractor for the subject job site, had the authority tosupervise and control the work being performed by the plaintiff at the time of his accident. Theinjured plaintiff worked for a company subcontracted by Maric to perform the plumbing work atthe job site, and was engaged in this work at the time of the accident. It is undisputed that he fellthrough an opening in the floor of the building's basement, falling 15 feet to the floor of thesub-basement. The evidence established that there were no barricades or other protection aroundthe opening in the floor. Accordingly, upon determining that Maric was a statutory agent of theowner within the meaning of the Labor Law and that Maric raised no triable issue of fact, theSupreme Court properly granted that branch of the plaintiffs' motion which was for summaryjudgment on the issue of liability on the Labor Law § 240 (1) cause of action insofar asasserted against Maric, and denied that branch of Maric's cross motion which was for summaryjudgment dismissing that cause of action insofar as asserted against it.
"Labor Law § 200 codifies the common-law duty of an owner or employer to provideemployees with a safe place to work" (Romang v Welsbach Elec. Corp., 47 AD3d 789 [2008]; seeRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; Jock v Fien, 80NY2d 965, 967 [1992]; Smith v 499Fashion Tower, LLC, 38 AD3d 523, 524 [2007]; Brown v Brause Plaza, LLC, 19 AD3d 626 [2005]; Linares v United Mgt. Corp., 16 AD3d382, 384 [2005]). When, as here, the plaintiff's injuries arose not from the manner in whichthe work was performed, but from an allegedly dangerous condition at the work site, a defendantmay be liable under Labor Law § 200 and for common-law negligence if it had controlover the work site and actual or constructive notice of the dangerous condition (see Payne v 100 Motor Parkway Assoc.,LLC, 45 AD3d 550 [2007]; McLeod v Corporation of Presiding Bishop of Church of Jesus Christ ofLatter Day Sts., 41 AD3d 796, 798 [2007]; Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708-709 [2007]).The Supreme Court properly denied that branch of Maric's cross motion which was for summaryjudgment dismissing the plaintiff's Labor Law § 200 and common-law negligence causesof action insofar as asserted against it, since Maric failed to eliminate all triable issues of fact asto whether it had actual or constructive notice of the allegedly dangerous condition which causedthe plaintiff's injuries (see Keating vNanuet Bd. of Educ., 40 AD3d 706, 708-709 [2007]; Pirrotta v EklecCo, 292AD2d 362, 364 [2002]).
Maric asks this Court to search the record and conditionally award it summary judgment on[*3]its cross claim for common-law indemnification insofar asasserted against its codefendants New York Pre-Cast, Inc. (hereinafter New York Pre-Cast), andNew York Steel Fabricators, Inc. (hereinafter New York Steel). In order to establish itsentitlement to judgment as a matter of law on this cross claim, Maric was required to refer toevidence in the record, demonstrating not only that it was not negligent, but also that theproposed indemnitors were responsible for the negligence that contributed to the accident or, inthe absence of any negligence, had the authority to direct, supervise, and control the work givingrise to the plaintiff's injury (seeBenedetto v Carrera Realty Corp., 32 AD3d 874, 875 [2006]). Where a defendant'salleged liability is purely statutory and vicarious, conditional summary judgment in thatdefendant's favor on the basis of common-law indemnification "is premature absent proof, as amatter of law, that [the party from whom indemnification is sought] was negligent or hadauthority to direct, supervise, and control the work giving rise to the plaintiff's injury"(Benedetto v Carrera Realty Corp., 32 AD3d at 875; see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685[2005]; Priestly v Montefiore Med.Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [2004]; Hernandez v Two E. End Ave.Apt. Corp., 303 AD2d 556, 557-558 [2003]; Reilly v DiGiacomo & Son, 261 AD2d318 [1999]). While we make no express finding in this regard as to the nature of Maric's liability,Maric is not entitled to conditional summary judgment on its cross claim for common-lawindemnification at this time, as Maric failed to make the requisite showings with regard to NewYork Pre-Cast or New York Steel (see Benedetto v Carrera Realty Corp., 32 AD3d at875; Perri v Gilbert Johnson Enters. Ltd., 14 AD3d at 684-685; Priestly v MontefioreMed. Ctr./Einstein Med. Ctr., 10 AD3d at 495). Spolzino, J.P., Ritter, Santucci and Carni,JJ., concur.