| Vargas v New York City Tr. Auth. |
| 2009 NY Slip Op 01688 [60 AD3d 438] |
| March 10, 2009 |
| Appellate Division, First Department |
| Ramon Vargas, Respondent-Appellant, v New York CityTransit Authority, Respondent-Appellant. New York City Transit Authority, Third-PartyPlaintiff-Respondent-Appellant, v Halmar Builders of New York, Third-PartyDefendant-Appellant-Respondent. Granite Halmar Construction Company, Inc., SecondThird-Party Plaintiff-Appellant-Respondent, v Grand Mechanical Corp. et al., SecondThird-Party Defendants-Respondents, and Atlantic Rolling Steel Door Corp., SecondThird-Party Defendant-Respondent-Appellant. |
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Alexander J. Wulwick, New York, for Ramon Vargas, respondent. Mound CottonWollan & Greengrass, New York (Todd A. Bakal of counsel), for Granite Halmar ConstructionCompany, Inc., appellant-respondent/appellant-respondent. Cerussi & Spring, PC, White Plains (Peter Riggs of counsel), for Atlantic Rolling Steel DoorCorp., respondent-appellant. [*2]Barry, McTiernan & Moore, New York (Laurel A.Wedinger of counsel), for Grand Mechanical Corp., respondent. Rende Ryan & Downes, LLP, White Plains (Roland T. Koke of counsel), for Miller ProctorNickolas, Inc., respondent.
Orders, Supreme Court, Bronx County (Janice Bowman, J.; Barry Salman, J.), entered June12, 2007 and February 19, 2008, which, to the extent appealed from, granted motions forsummary judgment dismissing the complaint only to the extent of dismissing the cause of actionunder Labor Law § 200 while denying such motions insofar as addressed to the causes ofaction under Labor Law § 240 (1) and § 241 (6) and common-law negligence,denied the motion by defendant/third-party plaintiff-respondent-appellant New York City TransitAuthority (NYCTA) for summary judgment on its third-party claim for contractual defense andindemnification against third-party defendant/second third-party plaintiff-appellant-respondentGranite Construction Northeast, Inc. formerly known as Granite Halmar Construction Company,Inc. formerly known as Halmar Builders of New York, Inc. (Granite), denied Granite's motionfor summary judgment on its third-party claims for contractual defense and indemnificationagainst second third-party defendants-respondents Grand Mechanical Corp. (Grand Mechanical)and Miller Proctor Nickolas, Inc. (Miller Proctor), denied the motion by second third-partydefendant-respondent-appellant Atlantic Rolling Steel Door Corp. (Atlantic) for summaryjudgment dismissing Granite's third-party claim and all cross claims against it, and grantedGrand Mechanical's and Miller Proctor's respective cross motions for summary judgmentdismissing Granite's third-party claims and all cross claims against them, unanimously modified,on the law, to dismiss the cause of action for common-law negligence, to grant NYCTAsummary judgment as to liability on its third-party claim against Granite for contractual defenseand indemnification, to grant Granite summary judgment as to liability on its third-party claimfor contractual defense and indemnification against Grand Mechanical, to grant Atlanticsummary judgment dismissing Granite's third-party claim and all cross claims against it, to denyGrand Mechanical's cross motion to the extent it sought dismissal of Granite's third-party claimfor contractual defense and indemnity against it and dismissal of NYCTA's cross claims againstit for contractual defense and indemnity and breach of contract, to deny Miller Proctor's crossmotion insofar as it sought summary judgment dismissing Grand Mechanical's cross claim forcontractual defense and indemnity against Miller Proctor, that cross claim reinstated, andotherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of Atlanticdismissing the second third-party complaint and all cross claims as against it.
The subject incident occurred in the course of the construction of a bus maintenance facilityowned by NYCTA. Granite, the project's general contractor, hired Grand Mechanical as theHVAC subcontractor. Grand Mechanical hired Miller Proctor to commission, or start up, thefacility's boilers. In March 2001, after the boilers had been commissioned, Grand Mechanicalcalled Miller Proctor to address a leak in one of them. Plaintiff, the Miller Proctor employee sentto respond to the call, alleges that, because his employer did not provide him with a ladder, andno others were available at the site, he borrowed one from employees of Atlantic, the project'srolling door subcontractor. Plaintiff further alleges that, because the A-frame ladder provided byAtlantic, when opened, was not tall enough to enable him to reach the top of the boiler, he [*3]climbed the ladder while it was closed and leaning on the sphericalboiler. Plaintiff was injured when the ladder collapsed while he was climbing it in this fashion.
As plaintiff does not challenge the dismissal of his cause of action under Labor Law §200, and as section 200 is merely a codification of the common-law duty imposed on owners andgeneral contractors to maintain a safe construction site (Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352 [1998]), we modify to dismiss plaintiff's causes of action against theowner and general contractor for common-law negligence. However, the motions to dismiss thecauses of action under Labor Law § 240 (1) and § 241 (6) were correctly denied.The record does not establish, as a matter of law, that plaintiff's acts were the sole proximatecause of the accident, given the evidence that the unsecured ladder on which he was standingcollapsed and that no other safety devices were provided (see Vega v Rotner Mgt. Corp., 40 AD3d 473, 474 [2007], citing Velasco v Green-Wood Cemetery, 8AD3d 88, 89 [2004]), although there was also countervailing evidence. Contrary to thearguments of NYCTA and the third-party defendants, Labor Law § 240 (1) expresslycovers "repairing" a building or structure. As to Labor Law § 241 (6), Industrial Code (12NYCRR) § 23-1.21 (b) (4) (iv) is both applicable and sufficiently specific to support aclaim under the statute (see Montalvo vJ. Petrocelli Constr., Inc., 8 AD3d 173, 176 [2004]).
Regarding the third-party claims, the record establishes that NYCTA is entitled tocontractual indemnification and defense from Granite, and that Granite is entitled to contractualindemnification and defense from Grand Mechanical, in each case pursuant to the plain terms ofthe applicable written agreement between the two parties. Since the record contains no evidencethat plaintiff's injuries resulted from negligence on the part of either NYCTA or Granite, there isno statutory bar to enforcement of these indemnity agreements. We note, however, that Granite'sclaim for indemnity and breach of contract against Miller Proctor was correctly dismissed, sinceGranite and Miller Proctor were not in contractual privity with each other, and the purchaseorders constituting the agreements between Grand Mechanical and Miller Proctor do not makeGranite a third-party beneficiary thereof, nor do such agreements incorporate by reference theterms of the subcontract between Granite and Grand Mechanical. We reject Grand Mechanical'sargument that plaintiff's injuries did not arise from Grand Mechanical's work for the project,since the record establishes that Miller Proctor sent plaintiff to the work site at GrandMechanical's request, pursuant to the purchase orders between Grand Mechanical and MillerProctor.
After Grand Mechanical was impleaded into the action, NYCTA asserted cross claimsagainst it for contractual defense and indemnity and for breach of contract, the latter based onGrand Mechanical's alleged failure to procure contractually required insurance coverage forNYCTA. We agree with NYCTA's argument that Supreme Court erred in dismissing these crossclaims against Grand Mechanical. The subcontract between Granite and Grand Mechanicalexpressly incorporated by reference the terms of the prime contract between NYCTA andGranite and made Granite's obligations under the prime contract binding on Grand Mechanical.Accordingly, such cross claims by NYCTA against Grand Mechanical are reinstated.
Since we are reinstating Granite's and NYCTA's claims against Grand Mechanical, we alsoreinstate Grand Mechanical's cross claim against Miller Proctor solely to the extent that crossclaim seeks contractual defense and indemnity. While Grand Mechanical has not taken anappeal, it was not aggrieved by the orders under review, which dismissed all claims against it.We note that Grand Mechanical has not advanced any argument in favor of the viability of aclaim for common-law indemnity or contribution against Miller Proctor, which appears to be[*4]immunized from such liability by Workers' CompensationLaw § 11, given that plaintiff does not allege a "grave injury" under that statute.
Finally, Atlantic was entitled to dismissal of all claims against it. The record establishes thatAtlantic, the rolling door subcontractor, was not in contractual privity with plaintiff's employer,that it had no supervision, direction or control over plaintiff's work, and that it had no duty toprovide him with equipment adequate for the performance of his work. Accordingly, plaintiff'sinjuries did not arise from Atlantic's work, and were not caused by any fault attributable toAtlantic. Concur—Tom, J.P., Saxe, Friedman, Buckley and Catterson, JJ.
Reargument by Grand Mechanical Corporation granted and, upon reargument, the decisionand order of this Court entered on September 9, 2008 (54 AD3d 579 [2008]) is recalled andvacated and a new decision and order substituted therefor. Leave to appeal to the Court ofAppeals denied. Reargument by New York City Transit Authority denied.