| Herrnsdorf v Bernard Janowitz Constr. Corp. |
| 2009 NY Slip Op 07984 [67 AD3d 640] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Luis Miguel Herrnsdorf, Appellant-Respondent, v BernardJanowitz Construction Corporation, Defendant and Third-Party Plaintiff-Respondent, andWestbrook Partners, LLC, et al., Respondents-Appellants. Allright Construction Corp.,Third-Party Defendant-Respondent; Utica First Insurance Company, Third-PartyDefendant-Appellant. |
—[*1] Farber Brocks & Zane LLP, Mineola, N.Y. (Audra S. Zane and Sherri N. Pavloff ofcounsel), for third-party defendant-appellant. Andrea G. Sawyers, Melville, N.Y. (David R. Holland and Dominic Zafonte of counsel), fordefendants-respondents-appellants. Russo, Keane & Toner, LLP, New York, N.Y. (Alan S. Russo and Thomas F. Keane ofcounsel), for defendant and third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated March28, 2008, as denied his motion for summary judgment on the issue of liability under Labor Law§ 240 (1), the defendants Westbrook Partners, LLC, and W.J. Harbor Ridge, LLC,cross-appeal, as limited by their brief, from so much of the same order as did not decide thatbranch of their cross motion which was for summary judgment dismissing the plaintiff'scommon-law negligence cause of action and held in abeyance those branches of their crossmotion which were for conditional summary judgment in their favor on their contractual andcommon-law indemnification cross claims against the defendant Bernard Janowitz ConstructionCorporation, and the third-party defendant Utica First Insurance Company appeals, as limited byits brief, from stated portions of the same order which, inter alia, denied that branch of itspre-answer motion pursuant to CPLR 3211 (a) (1) which was to dismiss the third-partycomplaint insofar as asserted against it.
Ordered that the cross appeal by the defendants Westbrook Partners, LLC, and W.J. HarborRidge, LLC, is dismissed, as those branches of their cross motion which were for summaryjudgment dismissing the plaintiff's common-law negligence cause of action and for conditionalsummary judgment in their favor on their contractual and common-law indemnification [*2]cross claims against the defendant Bernard Janowitz ConstructionCorporation remain pending and undecided (see Katz v Katz, 68 AD2d 536 [1979]); andit is further,
Ordered that the order is affirmed insofar as appealed and cross-appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant third-party plaintiff, payable by theremaining parties appearing separately and filing separate briefs.
The plaintiff, a carpenter, allegedly was injured when he fell off a roof of a house whileinstalling metal trims. The property was owned by the defendant W.J. Harbor Ridge, LLC(hereinafter Harbor Ridge), which also owned the defendant Westbrook Partners, LLC(hereinafter Westbrook). Harbor Ridge entered into a contract with the defendant BernardJanowitz Construction Corporation (hereinafter Janowitz) whereby Janowitz, as generalcontractor, would construct and develop approximately 100 homes on the undeveloped propertyowned by Harbor Ridge. The plaintiff was employed by the third-party defendant AllrightConstruction Corp. (hereinafer Allright), which was subcontracted by Janowitz to install metalpanels and trims on the roofs of houses in the development under construction.
The plaintiff commenced this action against Janowitz, Harbor Ridge, and Westbrook,alleging causes of action based on common-law negligence and Labor Law §§ 200,240 (1) and § 241 (6). Janowitz commenced a third-party action against Allright and UticaFirst Insurance Company (hereinafter Utica First). Janowitz sought a declaration that Utica Firstwas required to defend it against the claims asserted by the plaintiff on the ground that it waslisted as an additional insured pursuant to an insurance policy between Utica First and Allright.
The Supreme Court denied the plaintiff's motion for summary judgment on the issue ofliability on the cause of action based on Labor Law § 240 (1) asserted against Janowitz,Harbor Ridge, and Westbrook, and denied Utica First's pre-answer motion.
" 'Labor Law § 240 (1) imposes a nondelegable duty upon owners and contractors toprovide or cause to be furnished certain safety devices for workers on an elevated work site, andthe absence of appropriate safety devices constitutes a violation of the statute as a matter of law'" (Riccio v NHT Owners, LLC, 51AD3d 897, 898 [2008], quoting Andino v BFC Partners, 303 AD2d 338, 339[2003]). Generally, to establish a prima facie violation of Labor Law § 240 (1) a claimantmust establish that "the statute was violated and that this violation was a proximate cause of hisor her injuries" (Sprague v Peckham Materials Corp., 240 AD2d 392, 393 [1997]; seeOrellana v American Airlines, 300 AD2d 638, 639 [2002]; Gardner v New York City Tr.Auth., 282 AD2d 430, 431 [2001]). Where a " 'plaintiff's actions [are] the sole proximatecause of his injuries . . . liability under Labor Law § 240 (1) [does] notattach' " (Robinson v East Med. Ctr.,LP, 6 NY3d 550, 554 [2006], quoting Weininger v Hagedorn & Co., 91 NY2d958, 960 [1998]; see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Coates v Corporation of Presiding Bishopof Church of Jesus Christ of Latter-Day Sts., 56 AD3d 599 [2008]).
Here, the plaintiff failed to establish, prima facie, that the ladder did not provide him withproper protection under Labor Law § 240 (1), and that his actions were not the soleproximate cause of his injuries (see Riccio v NHT Owners, LLC, 51 AD3d at 899;Gonzalez v Plain Edge High School Dist., 300 AD2d 540 [2002]). Since the plaintifffailed to establish his prima facie entitlement to summary judgment on his Labor Law §240 (1) claim, it is not necessary to consider the sufficiency of the opposition papers of Janowitz,Westbrook, and Harbor Ridge (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]).
The Supreme Court properly denied that branch of Utica First's motion which was pursuantto CPLR 3211 (a) (1) to dismiss the third-party complaint. "[I]n order for a complaint to bedismissed pursuant to CPLR 3211 (a) (1), the evidence submitted must 'resolve[ ] all factualissues as a matter of law, and conclusively dispose of the plaintiff's claim' " (Del Pozo v Impressive Homes, Inc., 29AD3d 621, 622 [2006], quoting Berger v Temple Beth-El of Great Neck, 303 AD2d346, 347 [2003]). Utica First failed to conclusively demonstrate that Janowitz was not anadditional insured to the [*3]insurance policy. Additionally,Utica First could not rely on affidavits in support of its motion to dismiss pursuant to CPLR3211 (a) (1) because they do not constitute documentary evidence (see Berger v TempleBeth-El of Great Neck, 303 AD2d at 347).
The parties' remaining contentions are without merit. Mastro, J.P., Fisher, Angiolillo andLeventhal, JJ., concur.