| Caballero v Benjamin Beechwood, LLC |
| 2009 NY Slip Op 08577 [67 AD3d 849] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Ruben Dario Caballero,Respondent-Appellant, v Benjamin Beechwood, LLC, et al., Respondents-Appellants,and LLC Contracting Corp. et al., Appellants-Respondent. (And a Third-PartyAction.) |
—[*1] Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), forrespondent-appellant Ruben Dario Caballero. Fabiani Cohen & Hall, LLP, New York, N.Y. (Lisa A. Sokoloff of counsel), forrespondents-appellants Benjamin Beechwood, LLC, and Rockaway Beach Blvd. ConstructionCo., LLC.
In an action to recover damages for personal injuries, etc., (1) the defendants LCCContracting Corp. and Linden Construction Corp. appeal, as limited by their brief, from so muchof an order of the Supreme Court, Queens County (Cullen, J.), dated September 8, 2008, asgranted that branch of the motion of the defendants Benjamin Beechwood, LLC, and RockawayBeach Blvd. Construction Co., LLC, which was for summary judgment on the cross claim forcontractual indemnification insofar as asserted against LCC Contracting Corp., denied thatbranch of their cross motion which was for summary judgment dismissing the cross claim forcontractual indemnification insofar as asserted against them by the defendants BenjaminBeechwood, LLC, and Rockaway Beach Blvd. Construction Co., LLC, denied that branch of themotion of the defendants Benjamin Beechwood, LLC, and Rockaway Beach Blvd. ConstructionCo., LLC, which was for summary judgment dismissing the cause of action alleging a violationof Labor Law § 240 (1) insofar as asserted against those defendants, and granted thatbranch of the plaintiff's cross motion which was for summary judgment on the issue of liabilityon the cause of action alleging a violation of Labor Law § 240 (1) insofar as assertedagainst the defendants Benjamin Beechwood, LLC, and Rockaway Beach Blvd. ConstructionCo., LLC, (2) the defendants Benjamin Beechwood, LLC, and Rockaway Beach Blvd.Construction Co., LLC, cross-appeal, as limited by their brief, from so much of the same order asgranted that branch of the plaintiff's cross motion which was for summary judgment on the issueof liability on the cause of action alleging a violation of Labor Law § 240 (1) insofar asasserted against them, denied that branch of their motion which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 240 (1) insofar asasserted against them, granted that branch of the cross motion of the defendants LCCContracting Corp. and Linden [*2]Construction Corp. which wasfor summary judgment dismissing the cause of action alleging a violation of Labor Law §240 (1) insofar as asserted against LCC Contracting Corp., and denied that branch of theplaintiff's cross motion which was for summary judgment on the issue of liability on the cause ofaction alleging a violation of Labor Law § 240 (1) insofar as asserted against thedefendant LCC Contracting Corp., and (3) the plaintiff cross-appeals, as limited by his brief,from so much of the same order as granted that branch of the cross motion of the defendantsLCC Contracting Corp. and Linden Construction Corp. which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 240 (1) insofar asasserted against LCC Contracting Corp. and denied that branch of his cross motion which wasfor summary judgment on the issue of liability on the cause of action alleging a violation ofLabor Law § 240 (1) insofar as asserted against the defendant LCC Contracting Corp.
Ordered that the appeal by the defendant Linden Construction Corp. is dismissed, withoutcosts or disbursements, as it is not aggrieved by the portions of the order appealed from (seeCPLR 5511); and it is further,
Ordered that the appeal by the defendant LCC Contracting Corp. from so much of the orderas denied that branch of the motion of the defendants Benjamin Beechwood, LLC, andRockaway Beach Blvd. Construction Co., LLC, which was for summary judgment dismissingthe cause of action alleging a violation of Labor Law § 240 (1) insofar as asserted againstthose defendants and granted that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of liability on the cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against the defendants Benjamin Beechwood, LLC, andRockaway Beach Blvd. Construction Co., LLC, is dismissed, without costs or disbursements, asit is not aggrieved by those portions of the order (see CPLR 5511); and it is further,
Ordered that the cross appeal by the defendants Benjamin Beechwood, LLC, and RockawayBeach Blvd. Construction Co., LLC, from so much of the order as granted that branch of thecross motion of the defendants LCC Contracting Corp. and Linden Construction Corp. whichwas for summary judgment dismissing the cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against LCC Contracting Corp. and denied that branch of theplaintiff's cross motion which was for summary judgment on the issue of liability on the cause ofaction alleging a violation of Labor Law § 240 (1) insofar as asserted against thedefendant LCC Contracting Corp., is dismissed, without costs or disbursements, as they are notaggrieved by those portions of the order (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
The plaintiff allegedly sustained injuries by falling from a scaffold while performing drywallwork for a construction project located in Queens. The defendant Benjamin Beechwood, LLC(hereinafter Beechwood), was the owner, the defendant Rockaway Beach Blvd. ConstructionCo., LLC (hereinafter Rockaway), was the general contractor, and the defendant LCCContracting Corp. (hereinafter LCC) was the subcontractor retained by Rockaway to perform thework. At the time of the accident, the plaintiff was employed by Scala Interior Corp., which LCCretained to do the work.
The plaintiff commenced this action against Beechwood, Rockaway, LCC, and LindenConstruction Corp. (hereinafter Linden) alleging common-law negligence and violations ofLabor Law §§ 200, 240 (1) and § 241 (6). Beechwood and Rockawaycross-claimed against LCC and Linden, inter alia, for common-law and contractualindemnification.
To prevail on a claim under Labor Law § 240 (1), a plaintiff must prove that thestatute was violated and that such violation was a proximate cause of the resulting injuries(see Labor Law § 240 [1]; Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333, 338-339[2008]; Blake v Neighborhood Hous.Servs. of N.Y. City, 1 NY3d 280, 287 [2003]).[*3]
Here, the plaintiff established, prima facie, thatBeechwood and Rockaway were subject to liability under Labor Law § 240 (1) based onhis deposition testimony that a wheel of the scaffold on which he was working slipped into ahole, causing him to fall (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3dat 287; Kretowski v BraenderCondominium, 57 AD3d 950, 951 [2008]; Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695[2006]). In opposition, Beechwood and Rockaway failed to raise a triable issue of fact (see Hamilton v Kushnir Realty Co., 51AD3d 864, 865 [2008]). Where, as here, a violation of Labor Law § 240 (1) is aproximate cause of an accident, the worker's conduct cannot be deemed the sole proximate cause(see Valensisi v Greens at Half Hollow, LLC, 33 AD3d at 696).
As the evidence established that LCC did not exercise supervisory control over the plaintiff'swork or have the authority to insist that proper safety practices be followed (see Torres v LPE Land Dev. & Constr.,Inc., 54 AD3d 668, 669 [2008]; Kehoe v Segal, 272 AD2d 583, 584 [2000]),LCC was entitled to summary judgment dismissing the cause of action alleging a violation ofLabor Law § 240 (1).
Moreover, Beechwood and Rockaway established their prima facie entitlement to judgmentas a matter of law on that branch of their motion which was for summary judgment on their crossclaim for contractual indemnification insofar as asserted against LCC (see Giangarra v Pav-Lak Contr., Inc.,55 AD3d 869, 870-871 [2008]). In response, LCC failed to raise a triable issue of fact(id.). Although "an indemnification agreement that purports to indemnify a party for itsown negligence is void under General Obligations Law § 5-322.1, such an agreement doesnot violate the General Obligations Law if it authorizes indemnification to the fullest extentpermitted by law" (id. at 870-871 [internal quotation marks omitted]; Lesisz v Salvation Army, 40 AD3d1050, 1051 [2007]; Cabrera vBoard of Educ. of City of N.Y., 33 AD3d 641, 643 [2006]).
The parties' remaining contentions are without merit. Mastro, J.P., Miller, Angiolillo andAustin, JJ., concur. [See 2008 NY Slip Op 32713(U).]