| Mennis v Commet 380, Inc. |
| 2008 NY Slip Op 07080 [54 AD3d 641] |
| September 25, 2008 |
| Appellate Division, First Department |
| Marcos Mennis, Respondent, v Commet 380, Inc.,Respondent-Appellant, Solow Management Corp., Respondent, and TAG 380 LLC,Appellant-Respondent. (And a Third-Party Action.) |
—[*1] Solow Management Corp., respondent. Law Office of John P. Humphreys, New York (Eric P. Tosca of counsel), forrespondent-appellant. Pontisakos & Rossi, PC, Roslyn (Elizabeth Mark Meyerson of counsel), for Marcos Mennis,respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 29,2008, which denied defendant Commet's motion for summary judgment and granted plaintiff'scross motion for partial summary judgment on his Labor Law § 240 (1) claim against alldefendants, unanimously modified, on the law, Commet granted conditional summary judgmenton its contractual indemnity claim, and a declaration issued that defendant TAG's insurer has aduty to defend Commet in this action, and otherwise affirmed, without costs.
Plaintiff worker was injured in a fall from an affixed metal hatch ladder that led to the roof ofthe building Commet owned. TAG, Commet's long-term net lessee, had hired him to paint thesupport beams to the building's air conditioning cooling towers on the roof. Plaintiff's worksupplies were stored in the room where the hatch ladder was located.
The argument by Commet and TAG that the affixed hatch ladder was not a safety device asdefined under section 240 (1) is raised for the first time on appeal, and is thus unpreserved.Contrary to TAG's assertion, the issue is not easily decided as a matter of law on the existingrecord (cf. Chateau D' If Corp. v City of New York, 219 AD2d 205 [1996], lvdenied 88 NY2d 811 [1996]).
Plaintiff's unrefuted evidence that water regularly sprayed from the cooling towers onto [*2]the ladder's surface, that he repeatedly notified defendants of thiscondition prior to his fall, and that he fell when his hand slipped from the wet ladder, provided asufficient basis for awarding him partial summary judgment as to liability on his section 240 (1)claim. Under the circumstances, defendants' challenges to plaintiff's credibility, and theirarguments with respect to plaintiff's conduct, inter alia, in carrying a paint can in one hand whileclimbing the ladder, do not warrant a different result. Evidence indicates that defendants hadprompt notice of the accident and an opportunity to inspect, yet they offered no probativeevidence to refute plaintiff's claim of a wet, hazardous condition on the ladder.
Commet was liable under section 240 (1) notwithstanding its out-of-possession status andasserted lack of active negligence in connection with plaintiff's injury (see Sanatass v Consolidated Inv. Co.,Inc., 10 NY3d 333, 341 [2008]). It was entitled, however, to summary judgment on itsindemnity claim, as the parties to the lease were sophisticated business entities who unmistakablyindicated their intention to allocate risk of liability between them for the protection of thirdparties on the premises through the procurement of insurance (see Great N. Ins. Co. v Interior Constr.Corp., 7 NY3d 412, 419 [2006]). In light of these acts, there is no basis in the record forfinding that the indemnity provision violated General Obligations Law § 5-321.
Commet alleges that the lease required TAG to procure insurance on Commet's behalf as aprimary insured. However, it was sufficient to satisfy the lease requirements for TAG to procureinsurance naming Commet as an additional insured on its policy covering the premises. Inaddition, TAG was obligated to defend Commet in this litigation. Where, as here, the net leaseagreement obligates the tenant to make all repairs, both structural and nonstructural, andundertake full maintenance of the premises, and where the landlord has been named as anadditional insured on the tenant's policy protecting against the type of risk and injury at issuehere, the tenant's insurer has a duty to defend the landlord in the action (see ZKZ Assoc. vCNA Ins. Co., 89 NY2d 990 [1997]). Concur—Tom, J.P., Mazzarelli, Friedman,Williams and Moskowitz, JJ. [See 2008 NY Slip Op 30553(U).]