| Minorczyk v Dormitory Auth. of the State of N.Y. |
| 2010 NY Slip Op 05668 [74 AD3d 675] |
| June 24, 2010 |
| Appellate Division, First Department |
| Eugeniusz Minorczyk et al.,Appellants-Respondents, v Dormitory Authority of the State of New York et al.,Appellants-Respondents, and Liro Engineering and Construction Management P.C., Respondent.City of New York, Third-Party Plaintiff-Appellant-Respondent, v Inter Connection Electric, Inc.,Third-Party Defendant-Respondent. |
—[*1] Landman Corsi Ballaine & Ford, P.C., New York (William G. Ballaine of counsel), forDormitory Authority of the State of New York, appellant-respondent. Schnader Harrison Segal & Lewis LLP, New York (Bruce M. Strikowsky of counsel), forCity of New York, appellant-respondent. Raven & Kolbe, LLP, New York (Michael T. Gleason of counsel), for Liro Engineering andConstruction Management P.C., respondent.
Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered May 20, 2009,upon a jury verdict, awarding damages to plaintiffs, vacating the finding of liability againstdefendant Liro Engineering and Construction Management, dismissing the City of New York'sclaims for contractual and common-law indemnification against third-party defendant InterConnection Electric, and denying the City's motion for summary judgment on its claim againstInter Connection Electric for breach of its contract to procure insurance, unanimously modified,on the law and the facts, the verdict against Liro reinstated and the City's claim for contractual[*2]indemnification granted, the matter remanded for furtherproceedings, and otherwise affirmed, without costs. Appeals from amended order, same courtand Justice, entered April 30, 2008, unanimously dismissed, without costs, as subsumed in theappeals from the judgment.
Liro was "the eyes, ears, and voice of the owner," with complete supervisory authority overthe project and specific duties with regard to safety, rendering it a statutory agent of the ownerfor purposes of Labor Law § 241 (6) (see Walls v Turner Constr. Co., 4 NY3d 861, 864 [2005]).
Because the Labor Law § 200 and common-law negligence claims were based not onthe injured plaintiff's employer's methods or materials but on a dangerous condition on the site, itwas not necessary to show that Liro or the City exercised supervisory control over the manner ofperformance of the injury-producing work; the only issue was whether they had notice of thecondition (see Seda v Epstein, 72AD3d 455 [2010]; Urban v No. 5Times Sq. Dev., LLC, 62 AD3d 553, 555 [2009]). The jury finding that Liro and theCity had notice of the icy condition on the roof of the building where the injured plaintiff slippedand fell was based on sufficient evidence, consisting of meteorological records of a heavysnowfall ending three days before the fall, Liro's records, and the testimony of the DormitoryAuthority's on-site project manager, and was not against the weight of the evidence. Despite theCity's actual negligence, it was not precluded by General Obligations Law § 5-322.1 fromobtaining partial contractual indemnification pursuant to the Inter Connection contract, i.e.,indemnification for Inter Connection's negligence only, since the contract specifically barredindemnification of the City for its own negligence (see Brooks v Judlau Contr., Inc., 11 NY3d 204, 207 [2008]; ItriBrick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 [1997]).
We have considered the parties' remaining arguments for affirmative relief and find themunavailing. Concur—Saxe, J.P., Friedman, Nardelli, Moskowitz and Richter, JJ.