| Husted v Central N.Y. Oil & Gas Co., LLC |
| 2009 NY Slip Op 08926 [68 AD3d 1220] |
| December 3, 2009 |
| Appellate Division, Third Department |
| Donald Husted et al., Plaintiffs, v Central New York Oil and GasCompany, LLC, Defendant and Third-Party Plaintiff-Appellant, and Matco Electric Corporationet al., Appellants. Collins & Walton Plumbing & Heating Contractors, Inc.,Third-PartyDefendant-Respondent. |
—[*1] Mackenzie Hughes, L.L.P., Syracuse (Jennifer P. Williams of counsel), for Matco ElectricCorporation, appellant. Lippman O'Connor, Buffalo (Matthew J. Duggan of counsel), for G. Webster, Inc.,appellant. Sugarman Law Firm, L.L.P., Syracuse (Kevin R. Van Duser of counsel), for third-partydefendant-respondent.
Rose, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered October 22, 2008in Chemung County which, among other things, partially denied the motions of defendantsMatco Electric Corporation and G. Webster, Inc. for summary judgment dismissing thecomplaint against them.
Defendant Central New York Oil and Gas Company, LLC (hereinafter CNYOG) engageddefendant Matco Electric Corporation, defendant G. Webster, Inc. and third-party defendant,Collins & Walton Plumbing & Heating Contractors, Inc. (hereinafter C & W), to performconstruction work at its existing gas storage facility. During construction, plaintiff DonaldHusted (hereinafter plaintiff), an employee of C & W, fell from a stepladder when one of its legsslipped into a roughly three-inch-diameter hole in the floor that had been drilled by an employeeof Matco and allegedly hidden by plastic sheeting or construction debris placed by Webster.Seeking to recover for his injuries, plaintiff and his wife, derivatively, commenced this actionagainst defendants, alleging negligence and violations of Labor Law § 200, among otherthings. CNYOG asserted cross claims against Matco and Webster for common-law andcontractual indemnification, and brought a third-party action for contractual indemnificationagainst C & W.
After joinder of issue, C & W moved for summary judgment dismissing the third-partycomplaint. CNYOG cross-moved for summary judgment granting a conditional order ofindemnification against C & W. CNYOG also moved in the main action for summary judgmentgranting conditional orders of indemnification against Matco and Webster, and dismissingplaintiffs' common-law negligence and Labor Law § 200 claims. Matco and Websteropposed CNYOG's motions, and each moved for summary judgment dismissing plaintiffs' LaborLaw § 200 and common-law negligence claims against them. Supreme Court grantedCNYOG's motion for summary judgment dismissing plaintiffs' Labor Law § 200 andnegligence claims, and for conditional orders of indemnification against Matco and Webster, butdenied its cross motion for indemnification against C & W. The court also granted C & W'smotion for summary judgment dismissing CNYOG's third-party complaint, and denied Matco'sand Webster's cross motions for summary judgment dismissing, as relevant here, plaintiffs'negligence claims. Matco, Webster and CNYOG now appeal.
Initially, Matco and Webster argue that Supreme Court erred in granting CNYOG's motionfor dismissal of plaintiffs' Labor Law § 200 and common-law negligence claims as againstCNYOG because it failed to meet its burden to establish that it was not negligent in maintainingthe premises where plaintiff fell. We agree. As the owner of the construction premises, CNYOGhad a statutory and common-law duty to provide workers with a safe place to work (seeLabor Law § 200; Jock v Fien, 80 NY2d 965, 967 [1992]; Weinberg v Alpine Improvements,LLC, 48 AD3d 915, 918 [2008]; Gadani v Dormitory Auth. of State of N.Y., 43 AD3d 1218, 1220[2007]; Wohlfron v Brooklyn Edison Co., Inc., 238 App Div 463, 465-466 [1933],affd 263 NY 547 [1933]). Here, plaintiff's injuries resulted not from the manner in whichthe work was being performed, but from a dangerous condition on the premises (see Wolfe v KLR Mech., Inc., 35AD3d 916, 919 [2006]; compare Comes v New York State Elec. & Gas Corp., 82NY2d 876, 877 [1993]). In addition, CNYOG continued to occupy the premises and did not giveup its right of access to the work site. Thus, to meet its initial burden on its motion for summaryjudgment, CNYOG was required to establish, as a matter of law, that it had inspected andmaintained its premises in a reasonably safe condition, and did not have actual or [*2]constructive notice of the hole that caused plaintiff's ladder tocollapse (see Wolfe v KLR Mech., Inc., 35 AD3d at 919; Finger v Cortese, 28 AD3d 1089,1090-1091 [2006]; Bonse v KatrineApt. Assoc., 28 AD3d 990, 991 [2006]; Jurgens v Whiteface Resort on LakePlacid, 293 AD2d 924, 926-927 [2002]; Monroe v City of New York, 67 AD2d 89,96-98 [1979]).
Here, there is no allegation that CNYOG had actual notice of the hole's presence. WhileCNYOG argued that the hole had not been in existence long enough for constructive notice to beimputed, it offered no evidence as to when the room where plaintiff was working had last beencleaned, inspected or otherwise maintained in a reasonably safe condition. Nor did CNYOGestablish that the hole was not visible and apparent for a sufficient length of time to permit it todiscover and remedy the defect. Although one of Webster's employees testified that the hole hadbeen created on the day of the accident, the Matco employee who drilled the hole testified that hedefinitely had not done it on that day, but had drilled it at some time within the prior two weeks.Due to the question of fact as to when the hole was created as well as the lack of evidence of anyprior inspection, CNYOG failed to meet its initial burden to show that it properly maintained itspremises and lacked constructive notice of the hole (see Wolfe v KLR Mech., Inc., 35AD3d at 919). Accordingly, plaintiffs' Labor Law § 200 and common-law negligenceclaims against CNYOG should not have been dismissed.
We also agree with Matco's and Webster's contention that Supreme Court should havedenied CNYOG's motion for contractual and common-law indemnity against them because thequestion of whether CNYOG was negligent in maintaining its premises cannot be determined asa matter of law on this record. Unless the proposed indemnitee is found to be free from activenegligence, conditional summary judgment for either common-law or contractualindemnification against a proposed indemnitor is premature (see Hurley v Best Buy Stores, L.P., 57 AD3d 239, 240 [2008];State of New York v Travelers Prop. Cas. Ins. Co., 280 AD2d 756, 757-758 [2001];Potter v M.A. Bongiovanni, Inc., 271 AD2d 918, 919 [2000]; Correia v ProfessionalData Mgt., 259 AD2d 60, 65 [1999]).
Matco and Webster also contend that Supreme Court erred in denying their motion and crossmotion, respectively, for summary judgment dismissing plaintiffs' negligence causes of actionagainst them because they owed no duty to plaintiff. There is, however, sufficient evidence in therecord to raise questions of fact as to whether Matco created a dangerous condition on plaintiff'swork site by drilling an unguarded hole in the floor and whether Webster exacerbated thatcondition by hiding the hole from the view of workers in the room. Thus, their conduct fallswithin an exception to the general rule that breach of a contractual obligation does not give riseto a duty to a noncontracting third party (see Church v Callanan Indus., 99 NY2d 104,111 [2002]; Grady v Hoffman, 63AD3d 1266, 1267 [2009]; Elsey vClark Trading Corp., 57 AD3d 1330, 1332 [2008]).
Turning finally to CNYOG's argument that Supreme Court erred in denying its cross motionfor contractual indemnification against C & W and in granting C & W's motion for dismissal ofthe third-party complaint, we note that "Workers' Compensation Law § 11 prohibitsthird-party indemnification or contribution claims against employers, except in the case of a'grave injury' or where based upon a written contract entered into prior to the accident" (Giblin v Pine Ridge Log Homes, Inc.,42 AD3d 705, 706 [2007]). Although plaintiff was not shown to have sustained a graveinjury here, the contract between CNYOG and C & W included an indemnification provisionwhich comes within the second exception to the statute's prohibition (see Rodrigues v N & S Bldg. Contrs.,Inc., 5 NY3d 427, 433 [2005]). In addition, if [*3]theissue of CNYOG's negligence is ultimately decided in its favor, it would not also have to provethat C & W was negligent in order to establish its claim for contractual indemnification (seeBrown v Two Exch. Plaza Partners, 76 NY2d 172, 178 [1990]; Severino v SchuylerMeadows Club, 225 AD2d 954, 956-957 [1996]; Correia v Professional Data Mgt.,259 AD2d at 65). Thus, Supreme Court should not have dismissed the third-party complaintbased upon the lack of proof of C & W's negligence, as it did. Nonetheless, CNYOG's motion fora conditional order of indemnification was properly denied because of the existence of a questionof fact as to CNYOG's negligence. If CNYOG is ultimately found to have been negligent, thatwould preclude contractual indemnification under General Obligations Law § 5-322.1 (1).
Spain, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as (1) granted the motion of defendantCentral New York Oil and Gas Company, LLC for (i) conditional orders of indemnificationagainst defendants Matco Electric Corporation and G. Webster, Inc. and (ii) summary judgmentdismissing plaintiffs' Labor Law § 200 and common-law negligence causes of action, and(2) granted third-party defendant's motion for summary judgment dismissing the third-partycomplaint; said motions denied; and, as so modified, affirmed.