| Razzak v NHS Community Dev. Corp. |
| 2009 NY Slip Op 04405 [63 AD3d 708] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Abdur Razzak, Respondent-Appellant, v NHS CommunityDevelopment Corp., Respondent, and Central Development Corp., Defendant and Third-PartyPlaintiff-Respondent-Appellant. Daffodil General Contracting, Inc., Third-PartyDefendant-Respondent. |
—[*1] White, Quinlan & Staley, Garden City, N.Y. (Arthur T. McQuillan of counsel), for defendantthird-party plaintiff-respondent-appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), fordefendant-respondent. Joseph B. Maira, Brooklyn, N.Y. (Jason M. Baxter of counsel), for third-partydefendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Kings County (Ruchelsman, J.), dated March 20, 2008, as deniedhis motion for summary judgment on the issue of liability on the Labor Law § 240 (1)cause of action, and the defendant third-party plaintiff Central Development Corp. cross-appeals,as limited by its brief, from so much of the same order as denied that branch of its motion whichwas for summary judgment on its third-party cause of action for contractual indemnificationagainst the third-party defendant Daffodil [*2]GeneralContracting, Inc., and granted that branch of the motion of the defendant NHS CommunityDevelopment Corp. which was for summary judgment on its cross claim for contractualindemnification asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying theplaintiff's motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and substituting therefor a provision granting the motion; as so modified, theorder is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable tothe plaintiff and to the third-party defendant by the defendant NHS Community DevelopmentCorp. and the defendant third-party plaintiff Central Development Corp.
The defendant NHS Community Development Corp. (hereinafter NHS) contracted with thedefendant third-party plaintiff Central Development Corp. (hereinafter Central) to renovate abuilding owned by NHS. Central subcontracted with the plaintiff's employer, the third-partydefendant Daffodil General Contracting, Inc. (hereinafter Daffodil), to perform work on therenovation.
On December 28, 2003 the plaintiff was working on a scaffold removing plaster and cementfrom the exterior of the building. A woman appeared on the sidewalk, and complained of debrisfalling onto the awning of the shop next door. In response, the plaintiff went down to the groundlevel, where he spoke with Central's work-site manager, who instructed him to cover the awningof the neighboring shop. The plaintiff responded that he had a plastic sheet, but would need aladder in order to place it on top of the awning. Central's work-site manager then led the plaintiffto a room inside the building where he showed him an A-frame ladder that he could use for thatpurpose. Daffodil had no supervisor at the work site at that time. As the plaintiff was standing onthe ladder and trying to place the plastic sheet over the awning, the ladder suddenly moved andfell, causing the plaintiff to fall and sustain injuries.
The plaintiff established his prima facie entitlement to judgment as a matter of law bydemonstrating that the subject ladder failed to afford him proper protection for the work beingperformed, and that this failure was a proximate cause of the accident (see Gordon v EasternRy. Supply, 82 NY2d 555 [1993]; Bland v Manocherian, 66 NY2d 452 [1985]; Barr v 157 5 Ave., LLC, 60 AD3d796 [2009]). In opposition, Central and NHS failed to raise a triable issue of fact. TheSupreme Court erred in concluding that triable issues of fact were raised as to whether theplaintiff was acting within the scope of his employment at the time of his accident. Among otherthings, the subcontract between Central and Daffodil, pertaining to Daffodil's work on NHS'sbuilding, required Daffodil to "properly protect its work of construction by lights, barriers,supports, and guards, so as to avoid injury or damage to persons or property." At the relevanttime, the plaintiff clearly was acting within the ambit of his employment (see Andino v BFCPartners, 303 AD2d 338 [2003]).
On its cross appeal, Central asks that we modify so much of the order as denied the plaintiff'smotion for summary judgment on the issue of liability on the Labor Law § 240 (1) causeof action, to deny the motion on the "additional grounds" that the plaintiff's conduct was the soleproximate cause of his accident, and that he was not engaged in an activity enumerated underLabor Law § 240 (1) at the time of his accident (see Parochial Bus Sys. v Board ofEduc. of City of N.Y., 60 NY2d 539 [1983]; Rael Automatic Sprinkler Co., Inc. v Schaefer Agency, 52 AD3d670 [2008]). These contentions are without merit (see Prats v Port Auth. of N.Y. & N.J.,100 NY2d 878 [2003]; Barr v 157 5Ave., LLC, 60 AD3d 796 [2009]; Crooks v E. Peters, LLC, 60 AD3d 717 [2009]; Fitzpatrick v State of New York, 25AD3d 755 [2006]; Aguilar v HenryMar. Serv., Inc., 12 AD3d 542 [2004]; cf. Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006]).
The Supreme Court properly granted that branch of NHS's motion which was for summaryjudgment on its cross claim for contractual indemnification against Central, as NHS made aprima facie showing of entitlement to that relief and, in opposition, no triable issue of fact wasraised.
The Supreme Court also properly denied that branch of Central's motion which was forsummary judgment on its third-party cause of action for contractual indemnification againstDaffodil. In opposition to Central's establishment of its entitlement to judgment as a matter oflaw, Daffodil raised triable issues of fact as to the extent, if any, of Central's liability for causingthe plaintiff's injury, thereby precluding an award of summary judgment (see Callan v Structure Tone, Inc., 52AD3d 334 [2008]; see generallyBrooks v Judlau Contr., Inc., 11 NY3d 204 [2008]). Mastro, J.P., Miller, Chambers andAustin, JJ., concur.