| Hanley v McClier Corp. |
| 2009 NY Slip Op 04701 [63 AD3d 453] |
| June 9, 2009 |
| Appellate Division, First Department |
| Edward Hanley, Respondent, v McClier Corporation,Respondent-Appellant, NYP Holdings, Inc., et al., Respondents, and Hirani Engineering andLand Surveying, P.C., Appellant-Respondent. (And a Third-PartyAction.) |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), forrespondent-appellant and NYP Holdings, Inc. and News Corporation, Ltd., respondents. Ferro, Kuba, Mangano, Skylar, P.C., Hauppauge (Kenneth E. Mangano of counsel), forEdward Hanley, respondent. Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for SafewaySteel Products, Inc., respondents. London Fischer LLP, New York (Brian A. Kalman of counsel), for Allsafe HeightContracting Corp., respondent. Law Office of Lori Fischman, Tarrytown (George Dieter of counsel), for Fred GellerElectric, respondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered October 5, 2007, to theextent it denied defendant Hirani Engineering and Land Surveying, P.C.'s motion for summaryjudgment dismissing defendant McClier Corporation's cross claims for indemnification against it, denied McClier's motion for summary judgment dismissing plaintiff'sLabor Law § 200 and common-law negligence claims as against it, and granted defendantsAllsafe Height Contracting Corp.'s and Safeway Steel Products, Inc.'s motions for summaryjudgment [*2]dismissing McClier's cross claims forindemnification against them, unanimously modified, on the law, Hirani's motion granted,Safeway's and Allsafe's motions denied and otherwise affirmed, without costs.
Plaintiff, an employee of Fred Geller Electric, an electrical subcontractor, became injuredwhile he was running conduit and wiring lighting on the ceiling of the press area in a building.Plaintiff had been standing on a platform that Allsafe had constructed especially for the project.This platform collapsed six to eight inches causing a wire rig to fall on plaintiff's hip.
The motion court found that Hirani, the site safety manager, was not a statutory agent anddid not exercise the requisite degree of control over the work giving rise to plaintiff's injury to beliable, and therefore dismissed plaintiff's claims against Hirani based on Labor Law § 200and common law-negligence. Neither plaintiff nor McClier (the general contractor) challengesthis finding on appeal and McClier fails to make additional arguments concerning Hirani'snegligence. Accordingly, the court's dismissal of all of plaintiff's claims against Hirani forms thebasis to dismiss McClier's contractual indemnification claim against Hirani as wellas the common-law indemnification claim that Supreme Court left undecided.
The motion court was correct to deny McClier's motion for summary judgment. The partiesagree that, to establish liability against a general contractor under section 200, plaintiff mustestablish that the general contractor directed, controlled or supervised the manner, means ormethods of plaintiff's work. The evidence here raises an issue of fact as to the extent of McClier'scontrol. In particular, there was testimony that every time the scaffold was moved, McClierwould inspect it. Only McClier knew of the weight-bearing capacity of the scaffold. McClier hadthe authority to stop the work were it to notice an unsafe condition. McClier would receive dailysite safety reports concerning its subcontractors and would sometimes inspect their work.McClier's contract with Safeway, the entity McClier hired to construct the scaffold, requiredMcClier to check the platform and report problems to Safeway and to monitor use of and entryonto the platform.
The court should not have dismissed McClier's common-law indemnification claim againstAllsafe, which erected and moved the rolling platform where plaintiff became injured. No onehas established that the platform was free from defect, and a factual issue exists whether anynegligence on the part of Allsafe contributed to the accident (see Keohane v Littlepark HouseCorp., 290 AD2d 382, 383 [2002]). The testimony of the nonparty platform designer'sprincipal was insufficient to establish Allsafe's prima facie case. Although he said that thephotographs—that he could not authenticate—appeared to indicate that theconstruction of the platform conformed to its design, he had no firsthand knowledge of theplatform and could not opine whether Allsafe had actually constructed the platform inaccordance with the design. Indeed, the designer's witness testified that, to his knowledge, noone from his firm ensured that the platform conformed to the design specifications. Further,plaintiff's testimony about the 3½-inch gap in the planks where the floor collapsed sufficedto raise an issue of fact as to the adequacy of the platform's construction. In addition, thetestimony of plaintiff's coworker, who observed the floor buckling, corroborated plaintiff'stestimony.
Nor should the motion court have dismissed McClier's contractual indemnification claim[*3]against Safeway. Safeway's contract with McClier obligatesSafeway to indemnify McClier for any negligence on Allsafe's part, and a factual issue exists asto Allsafe's negligence. Concur—Gonzalez, P.J., Nardelli, Catterson, Moskowitz andRenwick, JJ.