| Gallagher v Levien & Co. |
| 2010 NY Slip Op 02724 [72 AD3d 407] |
| April 1, 2010 |
| Appellate Division, First Department |
| Joseph Gallagher et al., Respondents-Appellants, v Levien& Company et al., Respondents. (And a Third-Party Action.) Levien & Company et al., SecondThird-Party Plaintiffs-Respondents, v Shroid Construction, Inc., Second Third-PartyDefendant-Respondent, and Cord Construction, Second Third-PartyDefendant-Appellant-Respondent. |
—[*1] Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for Gallagherrespondents-appellants. Callan, Koster, Brady & Brennan LLP, New York (Michael P. Kandler of counsel), forShroid Construction, Inc., respondent. Nicoletti Hornig & Sweeney, New York (Barbara A. Sheehan of counsel), forrespondents.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered September 16,2008, which, to the extent appealed from as limited by the briefs, upon reargument of a priororder, same court and Justice, entered December 7, 2007, granted the motion of defendantsLevien & Company and F.J. Sciame Construction Co., Inc. for summary judgment dismissingplaintiffs' Labor Law § 240 (1) claim and dismissing their Labor Law § 200 andcommon-law negligence claims as against Sciame, and denied the branch of second third-partydefendant Cord [*2]Construction's motion for summary judgmentthat sought to dismiss plaintiffs' Labor Law § 241 (6) claim and implicitly denied thebranch of Cord's motion that sought to dismiss the second third-party complaint as against it,unanimously modified, on the law, to deny Levien and Sciame's motion, and to grant so much ofCord's motion as sought to dismiss the second third-party claim for contractual indemnificationagainst it, and otherwise affirmed, without costs. Appeal from the December 7, 2007 orderunanimously dismissed, without costs, as superseded by the appeal from the September 16, 2008order.
While working on a synagogue restoration project, the injured plaintiff stepped or fell into ahole in an alleyway running alongside the building's wall and above its basement. Plaintifftestified that he became "wedged" in the hole, with one leg in it and the other on the groundabove. He said that, immediately before falling, he picked up a piece of unsecured plywood that(unbeknownst to him) had been covering the hole, which he described as having an opening ofthree feet by four feet and exposing a drop of 10 to 15 feet to the basement floor below. Incontrast, the general contractor's assistant superintendent, who arrived at the scene minutes afterthe accident occurred, testified that the hole in question (an opening for an air conditioning ductmeasuring 14 inches by 2 feet) was only two to three feet deep; that the hole was one of about 10such openings in the alleyway, each of which had been covered with secured and marked piecesof plywood pursuant to plans; and that the piece of plywood that had covered the hole plaintifffell into had perforations in its corners, and the pins left in the concrete had little bits of plywoodattached to them.
In view of the conflicting testimony as to the height of the drop exposed by the hole, the sizeof the hole, and whether the plywood covering had been secured and marked, a triable issueexists whether plaintiff's injuries were causally related to a violation of Labor Law § 240(1). Accordingly, Supreme Court erred in dismissing the claim under that statute.
The court correctly declined to dismiss plaintiff's Labor Law § 241 (6) claimpredicated upon Industrial Code (12 NYCRR) § 23-1.7 (b) (1) ("Hazardous openings").Based on plaintiff's testimony that he fell through the hole in the alleyway up to his chest (albeitwith one leg still atop the hole), the Industrial Code provision is applicable to this case (seeMessina v City of New York, 300 AD2d 121, 123-124 [2002]). However, the evidenceraises factual issues whether the covering was properly marked and securely fastened andwhether plaintiff pried up a secured covering over the hole and thus was the sole proximatecause of his injuries.
Plaintiff's Labor Law § 200 and common-law negligence claims should not have beendismissed as against Sciame, the general contractor, because the evidence raises factual issueswhether Sciame had control over the work site and knew or should have known of the unsafecondition that allegedly brought about plaintiff's injury (see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352-353 [1998]; Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [2009]).Sciame's foreman testified that it was "ultimately" the general contractor's responsibility toensure that floor openings were properly covered, that he personally supervised thesubcontractors' work, including that of Cord, which was responsible for covering air duct holes,and that the work with respect to which he instructed the subcontractors included such safetytasks as covering openings in the floor.
The second third-party claims for common-law indemnification and contribution againstCord were correctly sustained, given the existing factual issues whether Cord was negligent incovering and inspecting all duct holes, and notwithstanding Sciame's foreman's testimony that, asgeneral contractor, Sciame inspected the duct hole coverings (see e.g. Urban, 62 AD2d at[*3]557). Sciame having conceded that it could not locate thecontract, its claim for contractual indemnification against Cord should have been dismissed.Concur—Tom, J.P., Friedman, Moskowitz, Freedman and Abdus-Salaam, JJ. [PriorCase History: 2008 NY Slip Op 32508(U).]