| Siegel v RRG Fort Greene, Inc. |
| 2009 NY Slip Op 09716 [68 AD3d 675] |
| December 29, 2009 |
| Appellate Division, First Department |
| Peter Siegel, Respondent, v RRG Fort Greene, Inc., et al.,Respondents-Appellants, and JLS Industries, Inc., et al., Respondents. JLS Industries, Inc.,Third-Party Plaintiff-Respondent, v H&L Electric, Inc., Third-PartyDefendant-Appellant-Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel),for respondents-appellants. The Feld Law Firm P.C., New York (John G. Korman of counsel), for Peter Siegel,respondent. Garbarini & Scher, P.C., New York (Thomas M. Cooper of counsel), for JLS Industries,respondents.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 23, 2009,which granted plaintiff's motion for summary judgment on the issue of liability under Labor Law§ 240 (1), and granted the cross motions by defendants RRG Fort Greene, Inc., AtlanticCenter Fort Green, Inc., both of the foregoing individually and doing business as Atlantic CenterFort Greene Associates, L.P. (collectively, Atlantic Center), and defendant/third-party plaintiffJLS Industries, Inc. and J.L.S. Industries, Inc., both of the foregoing individually and doingbusiness as JLS Industries, Inc. (collectively, JLS), for summary judgment on their contractualindemnification claims against third-party defendant H&L Electric, Inc., unanimously modified,on the law, to deny JLS's cross motion and, to the extent it was denied, to grant Atlantic Center'scross motion for summary judgment on its cross claim for contractual indemnification as againstJLS, and [*2]otherwise affirmed, without costs.
Plaintiff made a prima facie showing of liability under section 240 (1) by his testimony thatthe ladder tipped, causing him and the ladder to fall (see Panek v County of Albany, 99NY2d 452, 458 [2003]). In opposition, defendants and H&L failed to raise an issue of factwhether plaintiff's negligence was the sole proximate cause of the accident. Contrary to H&L'scontention, plaintiff was not required to show that the ladder was somehow defective (see McCarthy v Turner Constr., Inc.,52 AD3d 333, 333-334 [2008]).
As there is no evidence that Atlantic Center, the owner of the mall where plaintiff's accidentoccurred, created or had notice of the alleged defective condition on the floor, Atlantic Center isentitled to summary judgment on its cross claim for contractual indemnification against H&L.However, an issue of fact exists whether JLS, the general contractor, created the allegeddefective condition by failing to properly cover the expansion joint on the floor. Accordingly,JLS is not entitled to summary judgment on its third-party action against H&L (see Callan v Structure Tone, Inc., 52AD3d 334, 335-336 [2008]). JLS failed to preserve its contention that the accident report isinadmissible, and we decline to review it. Contrary to JLS's contention, the photographsdepicting the hole on the floor, together with plaintiff's testimony that the photographs accuratelydepict the floor after his accident, raised issues of fact whether a defective condition existed onthe floor and whether that condition proximately caused plaintiff's accident.
To the extent the motion court denied Atlantic Center's cross motion for summary judgmenton its claim for contractual indemnification as against JLS, the motion should have been granted.JLS does not dispute that Atlantic Center is entitled to indemnification pursuant to the terms ofthe parties' contract. Concur—Andrias, J.P., Friedman, Acosta, DeGrasse andRomÁn, JJ.