| Tapia v Mario Genovesi & Sons, Inc. |
| 2010 NY Slip Op 03109 [72 AD3d 800] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Carlos Tapia, Appellant, v Mario Genovesi & Sons, Inc.,Respondent-Appellant, and Reale Masonry Contractors, Inc., Respondent, et al.,Defendants. |
—[*1] Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. (William S. Badura of counsel), forrespondent-appellant. Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Westchester County (O. Bellantoni, J.),entered December 23, 2008, as denied his motion 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 Mario Genovesi & Sons, Inc., and Reale Masonry Contractors, Inc., andthe defendant Mario Genovesi & Sons, Inc., separately appeals, as limited by its brief, from somuch of the same order as denied its cross motion for summary judgment on its cross claim forcontractual and common-law indemnification against the defendant Reale Masonry Contractors,Inc.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthe plaintiff's motion for summary judgment on the issue of liability on the cause of actionalleging a violation of Labor Law § 240 (1) insofar as asserted against the defendantsMario Genovesi & Sons, Inc., and Reale Masonry Contractors, Inc., and substituting therefor aprovision granting that motion, and (2) by deleting the provision thereof denying that branch ofthe cross motion of the defendant Mario Genovesi & Sons, Inc., which was for summaryjudgment on so much of its cross claim as sought contractual indemnification against thedefendant Reale Masonry Contractors, Inc., and substituting therefor a provision granting thatbranch of the cross motion; as so modified, the order is affirmed, with one bill of costs payableby the defendant Reale Masonry Contractors, Inc., to the plaintiff and the defendant MarioGenovesi & Sons, Inc.
On January 6, 2006, the plaintiff allegedly sustained injuries while working on a residentialconstruction project. He fell when the makeshift scaffold that he was working on collapsed. Theplaintiff thereafter commenced this action against, among others, the defendant Mario Genovesi& Sons, Inc. (hereinafter Genovesi), the general contractor for the construction project, and thedefendant Reale [*2]Masonry Contractors, Inc. (hereinafterReale), the subcontractor retained by Genovesi to perform carpentry and framing work. At thetime of the accident, the plaintiff was employed by IP Construction, which Reale retained toperform the framing work for the project.
The Supreme Court should have granted the plaintiff's motion for summary judgment on theissue of liability on the cause of action alleging a violation of Labor Law § 240 (1) insofaras asserted against Genovesi and Reale. The plaintiff's uncontroverted deposition testimony,which he submitted in support of his motion, demonstrated that he was working at an elevatedheight when the scaffold that he was instructed to build and use collapsed. Prior to his fall, theplaintiff's employer provided him with specific instructions on how to erect the scaffold. Theplaintiff erected the scaffold according to these instructions and showed the completed scaffoldto his employer before he stood on it. The employer approved of its construction and design.Since the scaffold collapsed, the plaintiff established, prima facie, that he was not provided withan adequate safety device to do his work, as required by Labor Law § 240 (1), and that thisstatutory violation was a proximate cause of his injury (see Dos Santos v State of NewYork, 300 AD2d 434 [2002]; Pineda v Kechek Realty Corp., 285 AD2d 496, 497[2001]).
Since the plaintiff met his prima facie burden on his motion for summary judgment, theburden then shifted to Genovesi and Reale to present evidence sufficient to raise a triable issueof fact (see Norwood v Whiting-TurnerContr. Co., 40 AD3d 718 [2007]; Moniuszko v Chatham Green, Inc., 24 AD3d 638 [2005]).Genovesi, the general contractor, did not oppose the motion. Reale, the subcontractor andstatutory agent of Genovesi (see Russin v Louis N. Picciano & Son, 54 NY2d 311,317-318 [1981]), failed to raise a triable issue of fact in its opposition papers. In light of the factthat the plaintiff erected the scaffold in accordance with the specific instructions given to himand with the approval of his employer which was hired by Reale, Reale failed to show that theplaintiff's actions were the sole proximate cause of his accident (see Rico-Castro v Do & Co N.Y. Catering,Inc., 60 AD3d 749, 750 [2009]; Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 696[2006]; Pichardo v Aurora Contrs.,Inc., 29 AD3d 879, 880-881 [2006]). Moreover, the fact that the plaintiff may havebeen the sole witness to the accident does not preclude the award of summary judgment in hisfavor (see Klein v City of New York, 89 NY2d 833, 834-835 [1996]; Yin Min Zhu v Triple L. Group, LLC,64 AD3d 590 [2009]; Rivera vDafna Constr. Co., Ltd., 27 AD3d 545 [2006]; Perrone v Tishman Speyer Props., L.P., 13 AD3d 146, 147[2004]).
Additionally, the Supreme Court should have granted that branch of Genovesi's cross motionwhich was for summary judgment on so much of its cross claim as sought contractualindemnification against Reale. In opposition to Genovesi's establishment of its prima facieentitlement to judgment as a matter of law, Reale failed to raise a triable issue of fact. Thecontractual indemnification provision at issue proffered by Genovesi in support of its crossmotion required Reale to indemnify Genovesi "from and against all claims, damages, losses andexpenses including attorney fees arising out of or resulting from the performance of the work,provided that any such claim, damage, loss or expense is . . . caused in whole or inpart by any neglect, act or omission by the subcontractor, any sub-tier contractor or any onedirectly or indirectly employed by him or anyone for whose acts he may be liable." Here, theplaintiff's accident arose out of the performance of the subcontracted work, and Reale's sub-tiercontractor, IP Construction, instructed the plaintiff to build a scaffold that was inadequate.Moreover, General Obligations Law § 5-322.1 does not bar enforcement of a contractualindemnification provision where the indemnitee was held strictly liable under Labor Law§ 240 (1) and there was no evidence of its negligence (see Masciotta v Morse DieselIntl., 303 AD2d 309, 311-312 [2003]). Here, Reale failed to raise a triable issue of fact inopposition to Genovesi's prima facie showing that it was not actively negligent in the happeningof the plaintiff's accident (see Masciotta v Morse Diesel Intl., 303 AD2d at 312).
The remaining contentions of Genovesi and Reale are without merit. Mastro, J.P., Eng,Belen and Austin, JJ., concur.