| Macedo v J.D. Posillico, Inc. |
| 2009 NY Slip Op 09158 [68 AD3d 508] |
| December 10, 2009 |
| Appellate Division, First Department |
| Jonas Macedo, Respondent, v J.D. Posillico, Inc.,Appellant-Respondent, et al., Defendant. J.D. Posillico, Inc., Third-Party Plaintiff-Respondent, vCarabie Corp., Third-Party Defendant-Appellant. Jonas Macedo, Appellant, v J.D. Posillico,Inc., Respondent, et al., Defendant. J.D. Posillico, Inc., Third-Party Plaintiff-Respondent, vCarabie Corp., Third-Party Defendant-Respondent. |
—[*1] [*2]Ahmuty, Demers & McManus, Albertson (Brendan T.Fitzpatrick of counsel), for Carabie Corp., appellant-appellant. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for Jonas Macedo,respondent/appellant.
Order, Supreme Court, New York County (Carol Edmead, J.), entered December 1, 2008,which, insofar as appealed from, as limited by the briefs, granted plaintiff's motion for partialsummary judgment on his Labor Law § 240 (1) claim, denied defendant Posillico's crossmotion for summary judgment dismissing certain portions of plaintiff's Labor Law § 241(6) claim, and granted Posillico's motion for summary judgment on its contractualindemnification claim, unanimously modified, on the law, to grant Posillico's cross motion to theextent of dismissing plaintiff's Labor Law § 241 (6) claim premised on Industrial Code (12NYCRR) § 23-1.15 (c) and § 23-5.1 (c), and otherwise affirmed, without costs.Order, same court and Justice, entered August 14, 2008, which granted Carabie's motion forpartial summary judgment dismissing plaintiff's claim for lost wages, unanimously reversed, onthe law, without costs, the motion denied and the claim reinstated. Appeal from order, samecourt and Justice, entered June 26, 2009, denying reargument and renewal of the August 14,2008 order, unanimously dismissed, without costs, as taken from a nonappealable order and asacademic, respectively.
Plaintiff met his prima facie burden of establishing that he was performing work covered bysection 240 (1). It is undisputed that he was working on an elevated platform, attempting to lift acone hanging from a rope, when he and a coworker fell from the platform (see Landgraff v 1579 Bronx Riv. Ave.,LLC, 18 AD3d 385 [2005]; Kyle v City of New York, 268 AD2d 192 [2000],lv denied 97 NY2d 608 [2002]). Whether or not the platform failed or bent prior toplaintiff's fall is irrelevant because there is no question that neither plaintiff's safety device northe platform and associated safety wire prevented his fall and subsequent injury.
Even were we to consider that plaintiff's right to recover under section 240 (1) requires thatplaintiff prove that the platform failed, we note that no witness rebuts plaintiff's contention,supported by the testimony of his coworkers, that the platform bent or failed. Defendant Posillicomerely offered testimony from persons who did not witness the accident that after the accident"no changes or repairs were made to the platform," and that the platform was "secure" after theaccident. This simply does not refute the eyewitness testimony that the platform bent at the timeof the accident.
The motion court properly refused to dismiss plaintiff's Labor Law § 241 (6) claimpremised on Industrial Code (12 NYCRR) § 23-1.15. Indeed, section 23-5.1 (j)specifically requires safety railings for all scaffold platforms. Similarly, Industrial Code§ 23-5.3 (e) requires safety railings for all metal scaffolds. While Industrial Code §23-5.8, which covers suspended scaffolds, does not mention safety railings, there is no indicationthat the rules provided in section 23-5.1 and section 23-5.3 are not applicable to suspendedscaffolds.
However, the motion court erred in refusing to dismiss plaintiff's Labor Law § 241 (6)claim premised on Industrial Code (12 NYCRR) § 23-1.15 (c). Indeed, section 23-1.15 (c)does not require the presence of a toe board when "such safety railing is installed at grade orground level or is not adjacent to any opening, pit or other area which may be occupied by anyperson." Since there were no workers below the platform in this case, the claim based on section23-1.15 (c) should have [*3]been dismissed.
The motion court properly refused to dismiss plaintiff's section 241 (6) claim premised onIndustrial Code (12 NYCRR) § 23-1.16 (d), which requires that tail lines shall not belonger than four feet. Here, plaintiff testified that his line was approximately six feet long andthat if he had not fallen that far he would not have experienced the jolt that caused his injury.
Finally, as this Court has previously held, the section 241 (6) claim premised on IndustrialCode (12 NYCRR) § 23-5.1 (c) (1) must fail because the provision is insufficientlyspecific (Greaves v ObayashiCorp., 55 AD3d 409, 410 [2008], lv dismissed 12 NY3d 794 [2009]).
The motion court properly granted Posillico summary judgment on its contractualindemnification claim. It was undisputed that Carabie directed and controlled plaintiff's work aswell as the construction and installation of the platform. Further, the Labor Law § 200 andcommom-law negligence claims against Posillico were dismissed. Thus, while Carabie'snegligence has not yet been proven, Posillico's liability, if any, would only be vicarious andstatutory. Accordingly, Posillico is entitled to enforce the indemnification provision in itsagreement with Carabie (see Colozzo vNational Ctr. Found., Inc., 30 AD3d 251 [2006]; Aarons v 401 Hotel, L.P., 12 AD3d 293 [2004]).
Plaintiff did not forfeit his right to recover lost wages since the evidence did not show thatCarabie was induced to hire him because he produced false documentation (see Balbuena v IDR Realty LLC, 6NY3d 338, 362-363 [2006]; Coquev Wildflower Estates Devs., Inc., 58 AD3d 44, 52 [2008]). While plaintiff admitted thathe had a false social security number which he obtained in 1995, he maintained that at the timeCarabie hired him, he only provided a driver's license, union card and tax ID card. Carabie'schief operating officer claimed that plaintiff provided a copy of his social security card at thetime he was hired, which Carabie relied on as being accurate, and she provided a copy ofplaintiff's social security card which Carabie apparently obtained at some point. However, it isundisputed that Carabie did not complete or have plaintiff sign an I-9 Form until months after theaccident took place. Accordingly, even assuming that plaintiff had submitted his social securitycard at the time of his hire, it is clear that Carabie failed to comply with its employmentverification obligations in good faith. Thus, it cannot be concluded that plaintiff induced Carabieto hire him based on his social security card.
We have considered the parties' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Andrias, Saxe, Catterson and Acosta, JJ. [Prior CaseHistory: 2008 NY Slip Op 33198(U).]