| Ascencio v Briarcrest at Macy Manor, LLC |
| 2009 NY Slip Op 01598 [60 AD3d 606] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 3—Mario Ascencio, Respondent, v Briarcrest atMacy Manor, LLC, et al., Defendants and Third-Party Plaintiffs-Appellants-Respondents, et al.,Defendants. Griffin Landscaping Corporation, Third-PartyDefendant-Respondent-Appellant. |
—[*1] Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), forthird-party defendant-respondent-appellant. Osorio & Associates, LLC, White Plains, N.Y. (Michael H. Joseph of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendants and third-partyplaintiffs Briarcrest at Macy Manor, LLC, Wilder Balter Partners, Inc., and Griffon Associates,Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Nicolai, J.), entered January 7, 2008, as granted the plaintiff's motion forsummary judgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 241 (6) and denied that branch of their cross motion which was for summaryjudgment dismissing that cause of action insofar as asserted against them, and the third-partydefendant Griffin Landscaping Corporation cross-appeals, as limited by its brief, from so muchof the same order as granted the plaintiff's motion for summary judgment on the issue of liabilityon the cause of action alleging a violation of Labor Law § 241 (6) and denied, aspremature, its cross motion for summary judgment dismissing the third-party cause of action forcontractual indemnification.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof [*2]granting the plaintiff's motion for summary judgment on the issueof liability on the cause of action alleging a violation of Labor Law § 241 (6), andsubstituting therefor a provision denying that motion, and (2), by deleting the provision thereofdenying as premature the third-party defendant's cross motion for summary judgment dismissingthe third-party cause of action for contractual indemnification and substituting therefor aprovision granting that cross motion; as so modified, the order is affirmed insofar as appealedfrom, with one bill of costs to the third-party defendant Griffin Landscaping Corporation,payable by the defendants and third-party plaintiffs Briarcrest at Macy Manor, LLC, WilderBalter Partners, Inc., and Griffon Associates, Inc.
Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors tocomply with the specific safety rules and regulations set forth in the Industrial Code (seeRizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]; Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 501-502 [1993]) "in connection with construction,demolition or excavation work" (Nagel v D & R Realty Corp., 99 NY2d 98, 102 [2002];see Valdivia v Consolidated ResistanceCo. of Am., Inc., 54 AD3d 753, 754 [2008]). Since the instant action arose fromexcavation work, Labor Law § 241 (6) is applicable (see Mosher v State of NewYork, 80 NY2d 286 [1992]; Ciancio v Woodlawn Cemetery Assn., 249 AD2d 86[1998]). Further, the evidence indicates that the defendants and third-party plaintiffs may haveviolated specific provisions of the Industrial Code (see Webber v City of Dunkirk, 226AD2d 1050 [1996]). However, the evidence also indicates that the plaintiff may have beennegligent in placing himself too close to the excavation equipment. Since the plaintiff's allegedcomparative fault was a defense to his cause of action pursuant to Labor Law § 241 (6)(see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 350; Perri v Gilbert Johnson Enters., Ltd.,14 AD3d 681, 684 [2005]), the plaintiff failed to establish his entitlement to judgment as amatter of law with respect to this cause of action, since his submissions reveal that there aretriable issues of fact which preclude the award of summary judgment.
However, the Supreme Court should have granted the third-party defendant's cross motionfor summary judgment dismissing the third-party cause of action for contractual indemnification."Where the plaintiff has not sustained a 'grave injury,' section 11 of the Workers' CompensationLaw bars third-party actions against employers for indemnification or contribution unless thethird-party action is for contractual indemnification pursuant to a written contract in which theemployer 'expressly agreed' to indemnify the claimant" (Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]).Here, in opposition to the third-party defendant's prima facie showing that it was the plaintiff'semployer, that the purchase orders governing the plaintiff's work contained no contractual [*3]indemnification provisions, and that those orders were clear andunambiguous, the defendants and third-party plaintiffs failed to raise a triable issue of fact (cf. Spiegler v Gerken Bldg. Corp., 35AD3d 715 [2006]).
The parties' remaining contentions are without merit or need not be addressed in light of ourdetermination. Rivera, J.P., Leventhal, Belen and Chambers, JJ., concur.