| Lelek v Verizon N.Y., Inc. |
| 2008 NY Slip Op 06741 [54 AD3d 583] |
| September 9, 2008 |
| Appellate Division, First Department |
| Antoni Lelek, Appellant-Respondent, v Verizon NewYork, Inc., et al., Respondents-Appellants. Verizon New York, Inc., Third-PartyPlaintiff-Respondent-Appellant, v LVI Services, Inc., Third-PartyDefendant-Respondent. |
—[*1] Conway, Farrell, Curtin & Kelly, P.C., New York (Darrell John of counsel), for VerizonNew York, Inc., respondent-appellant/respondent-appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains (Adam R. Bialek ofcounsel), for Slattery Skanska, Inc. and Air Rail Construction Joint Venture,respondents-appellants. Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), for LVI Services, Inc.,respondent.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered June 12, 2007,which denied plaintiff's motion for summary judgment on the issue of liability under Labor Law§ 240 (1), denied those branches of the respective cross motions of defendant Verizon NewYork, Inc. (Verizon) and of defendants Slattery Skanska, Inc. and Air Rail Construction JointVenture, a joint venture composed of Slattery Skanska, Inc., Perini Corporation, Koch Skanska,Inc. and Skanska (USA) Inc. (collectively, the joint venture defendants), that sought summaryjudgment dismissing plaintiff's Labor Law § 240 (1) and § 241 (6) claims, deniedthat branch of the joint venture defendants' cross motion that sought summary judgmentdismissing plaintiff's Labor Law § 200 and common-law negligence claims as againstthem, denied that branch of Verizon's cross motion that sought summary judgment on its claimfor contractual indemnification against third-party defendant LVI Services, Inc. (LVI), grantedthat branch of Verizon's cross motion that sought summary judgment on its cross claim forcommon-law indemnification against the joint venture defendants, and denied that branch of thejoint venture [*2]defendants' cross motion that sought summaryjudgment dismissing LVI's cross claims against them for indemnification or contribution,unanimously modified, on the law, to grant Verizon conditional summary judgment on its claimfor contractual indemnification against LVI, and to deny Verizon summary judgment on its claimfor common-law indemnification against the joint venture defendants, and otherwise affirmed,without costs.
In connection with the demolition of an overpass, plaintiff, an asbestos handler, wasinstructed to descend from the overpass's partially demolished roadway onto a wooden deckapproximately three feet below, where he was to erect a decontamination chamber for theremoval of asbestos from a pipe traversing the overpass. Plaintiff was required to step from theroadway, from which rebar was protruding, onto a foot-wide I-beam about nine inches below theroadway and from the I-beam to the decking about a foot and a half below the top of the beam.The decking was placed to catch debris falling from the roadway. While attempting to make thisdescent, plaintiff lost his footing, fell from the roadway onto the I-beam, and landed on one footin the concrete debris on the deck. On this record, an issue of fact exists as to whether plaintiff'sinjuries resulted from a violation of Labor Law § 240 (1). Accordingly, plaintiff is entitledto a trial on his cause of action under Labor Law § 240 (1) against the joint venturedefendants, the project's general contractors, and Verizon, the owner of the pipe from whichasbestos was to be abated. The height differential at issue—approximately 2½ to 3feet—does not alter this result (see Megna v Tishman Constr. Corp. of Manhattan,306 AD2d 163 [2003]).
The cross motions by the joint venture defendants and Verizon were correctly denied to theextent they sought summary judgment dismissing plaintiff's cause of action under Labor Law§ 241 (6). The demolition-related asbestos abatement work in which plaintiff was engagedwas within the statute's coverage. Further, given that he was injured when, as a result of his fall,he struck his foot on debris from the roadway demolition that had accumulated on the deck,where the abatement work was to be conducted, plaintiff has raised an issue of fact as to whetherhis injury resulted from a violation of Industrial Code (12 NYCRR) § 23-1.7 (e) (2), whichrequires that "[w]orking areas" be "kept free from accumulations of . . . debris andfrom scattered . . . materials." Plaintiff has also raised an issue as to whether hisinjury resulted from a violation of Industrial Code § 23-1.7 (f), which requires that"[s]tairways, ramps or runways . . . be provided as the means of access to workinglevels above or below ground" where possible, and, where this is not possible, that "ladders orother safe means of access . . . be provided."
In view of the construction superintendent's testimony that the exposed rebar should havebeen cut down to an inch or two and that the concrete debris piled on the deck was between eightinches and a foot high, and plaintiff's supervisor's testimony that she spoke to someone at SlatterySkanska about cleaning up the debris, issues of fact as to negligence on the part of the jointventure defendants preclude summary judgment dismissing plaintiff's Labor Law § 200and common-law negligence claims as against them (see generally Mendez v Union Theol. Seminary in City of N.Y., 17AD3d 271 [2005]). Further, defendant Slattery Skanska is not immune from these claims onthe ground that its work was performed on behalf of the joint venture defendants (seePedersen v Manitowoc Co., 25 NY2d 412, 419 [1969]).
Verizon's motion for contractual indemnification should have been conditionally grantedagainst third-party defendant LVI, the company Verizon hired to conduct the asbestos abatement[*3]operation in which plaintiff was engaged when he wasinjured. Verizon is entitled to such indemnification whether plaintiff was employed by LVIdirectly or by a nonparty subsidiary, since, under the abatement services agreement between LVIand Verizon, LVI agreed to indemnify Verizon for claims based on injuries "resulting from[LVI's] acts or omissions or those of persons furnished by [LVI] while performing work for[Verizon] pursuant to this Agreement," and for claims "resulting directly or indirectly from theServices under this Agreement whether caused by the negligence of [LVI] or anyone acting onbehalf of [LVI]." LVI has not raised a factual issue as to whether the work in question wasperformed pursuant to the services agreement between Verizon and itself.
The joint venture defendants' motion to dismiss LVI's cross claim against them forcommon-law indemnification or contribution was correctly denied, given the existence of issuesof fact as to whether negligence of the joint venture defendants was a cause of plaintiff's injuries.However, because the record does not establish as a matter of law that negligence of the jointventure defendants was a cause of plaintiff's injuries, the grant of summary judgment to Verizonon its cross claim against the joint venture defendants for common-law indemnification waserroneous.
We have considered the parties' remaining claims for affirmative relief and find themunavailing. Concur—Tom, J.P., Saxe, Friedman, Buckley and Catterson, JJ.