| Spiegler v Gerken Bldg. Corp. |
| 2008 NY Slip Op 09584 [57 AD3d 514] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Kerry Spiegler et al., Respondents, v Gerken BuildingCorporation et al., Respondents-Appellants, and North Fork Bank, Appellant-Respondent, et al.,Defendant. (And a Third-Party Action.) |
—[*1] Thomas D. Hughes and Richard C. Rubinstein, for respondent-appellant Gerken BuildingCorporation. Quirk and Bakalor, P.C., New York, N.Y. (Gloria B. Dunn and Joel M. Maxwell of counsel), forrespondent-appellant Integrity Contracting, Inc. Brecher, Fishman, Pasternack, Heller, Walsh & Tilker (Diamond and Diamond, LLC, New York,N.Y. [Stuart Diamond], of counsel), for plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., (1) the defendant North Fork Bankappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack,J.), dated May 4, 2007, as denied those branches of its cross motion which were for summaryjudgment dismissing the plaintiff's claims pursuant to Labor Law § 240 (1) and § 241 (6)insofar as asserted against it and denied, as premature, the branch of the same cross motion which wasfor conditional summary judgment on its cross claim for contractual indemnification against thedefendant Integrity Contracting, Inc., (2) the defendant Integrity Contracting, Inc., cross-appeals, aslimited by its brief, from so much of the same order as denied those branches of its motion which werefor summary judgment dismissing the plaintiff's claims pursuant to Labor Law § 240 (1) and§ 241 (6) insofar as asserted against it, and (3) the defendant Gerken Building Corporationseparately cross-appeals, as limited by its notice of appeal and brief, from so much of the same orderas denied those branches of its separate motion which were for [*2]summary judgment dismissing the plaintiff's claims pursuant to Labor Law§ 240 (1) and § 241 (6) insofar as asserted against it and denied, as premature, thebranch of the same motion which was for summary judgment on its cross claim for contractualindemnification against the defendant North Fork Bank.
Ordered that the order is reversed insofar as cross-appealed from by the defendant IntegrityContracting, Inc., insofar as reviewed on the appeal by the defendant North Fork Bank, and insofar asreviewed on the cross appeal by the defendant Gerken Building Corporation, on the law, and thosebranches of the separate motions of the defendants Integrity Contracting, Inc., and Gerken BuildingCorporation, and the cross motion of the defendant North Fork Bank which were for summaryjudgment dismissing the Labor Law § 240 (1) and § 241 (6) claims insofar as assertedagainst each of them are granted; and it is further,
Ordered that the appeal by the defendant North Fork Bank from so much of the order as deniedthat branch of its cross motion which was for conditional summary judgment on its cross claim forcontractual indemnification against the defendant Integrity Contracting, Inc., is dismissed as academic,without costs or disbursements, in light of the determination of the appeal from so much of the order asdenied those branches of its cross motion which were for summary judgment dismissing the plaintiffs'Labor Law § 240 (1) and § 241 (6) claims insofar as asserted against it (see Abbattista v King's Grant Master Assn.,Inc., 39 AD3d 439, 442 [2007]); and it is further,
Ordered that the cross appeal by the defendant Gerken Building Corporation from so much of theorder as denied that branch of its motion which was for summary judgment on its cross claim forcontractual indemnification against the defendant North Fork Bank is dismissed as academic, in light ofthe determination of the cross appeal from so much of the order as denied those branches of its motionwhich was for summary judgment dismissing the plaintiffs' claims pursuant to Labor Law § 240(1) and § 241 (6) insofar as asserted against it (see Abbattista v King's Grant Master Assn., Inc., 39 AD3d 439, 442[2007]); and it is further,
Ordered that one bill of costs is awarded to the appellant-respondent and therespondents-appellants.
Kerry Spiegler (hereinafter the plaintiff) was working for the third-party defendant All Ran Electricof New York, Inc. (hereinafter All Ran), which had been subcontracted by the defendant IntegrityContracting, Inc. (hereinafter Integrity), to perform electrical work on a building owned by thedefendant Gerken Building Corporation (hereinafter Gerken) and leased to the defendant North ForkBank (hereinafter North Fork). On May 5, 2000 the plaintiff was working in an electrical room in thebasement of the building with a coworker installing a new electrical box. They were in the process ofinstalling an approximately 10-foot-long mounting channel, vertically from the ground to the ceilingagainst the wall, which was approximately 10 to 15 feet high. The plaintiff was working at ground leveland allegedly was injured while he was securing the mounting channel to the ground, when it struck himin the head.
The plaintiff and his wife, suing derivatively, commenced this action alleging claims based oncommon-law negligence and Labor Law §§ 200, 240 (1) and § 241 (6). Integritymoved for summary judgment dismissing the complaint and all cross claims insofar as asserted againstit. Gerken separately moved for summary judgment dismissing the complaint insofar as asserted againstit and for summary [*3]judgment in its favor, inter alia, on its crossclaim for indemnification against North Fork. North Fork cross-moved for summary judgmentdismissing the complaint insofar as asserted against it and for conditional summary judgment in its favoron its cross claim asserted against Integrity for contractual indemnification. The Supreme Court grantedthose branches of the separate motions of Integrity and Gerken and that branch of North Fork's crossmotion which were to dismiss the claims based on common-law negligence and Labor Law §200 and denied those branches of the respective motions and cross motion which were to dismiss theclaims based on Labor Law § 240 (1) and § 241 (6). The Supreme Court also denied aspremature all branches of the motions and cross motion relating to indemnification.
The protections of Labor Law § 240 (1) only apply to elevation-related hazards where thework site itself is elevated or is positioned below the level where the materials or load are being hoistedor secured (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]; Rossv Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]). "With respect to fallingobjects, Labor Law § 240 (1) applies where the falling of an object is related to 'a significant riskinherent in . . . the relative elevation . . . at which materials or loads must bepositioned or secured' " (Narducci v Manhasset Bay Assoc., 96 NY2d at 267-268, quotingRocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Here, the mountingchannel that fell on the plaintiff did not fall from an elevated height and was not the type of hazardexperienced by construction workers that is covered by Labor Law § 240 (1) (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d at 500; Peay v New York City School Constr. Auth., 35 AD3d 566, 568[2006]; Mikcova v Alps Mech., Inc., 34AD3d 769, 770 [2006]; Bailey v Benderson, 255 AD2d 927 [1998]). Therefore, theSupreme Court should have awarded summary judgment to North Fork, Integrity, and Gerkendismissing the Labor Law § 240 (1) claim insofar as asserted against each of them.
The Supreme Court should also have awarded summary judgment to North Fork, Integrity, andGerken, dismissing the Labor Law § 241 (6) cause of action, which was predicated on allegedviolations of Industrial Code § 23-1.8 (c) (1) (12 NYCRR 23-1.8 [c] [1]), insofar as assertedagainst each of them as the code provision relied on did not apply to the facts of this case (see Rossv Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502) because this was not a "hard-hat" job(see Modeste v Mega Contr., Inc., 40AD3d 255, 256 [2007]; Mikcova v Alps Mech. Inc., 34 AD3d at 770; Castillo v Starrett City, 4 AD3d 320,321 [2004]; Sikorski v Burroughs Dr. Apts., 306 AD2d 844, 845 [2003]). Rivera, J.P.,Skelos, Angiolillo and Balkin, JJ., concur.