| Erickson v Cross Ready Mix, Inc. |
| 2010 NY Slip Op 06073 [75 AD3d 519] |
| July 13, 2010 |
| Appellate Division, Second Department |
| Richard J. Erickson, Respondent-Appellant, v Cross ReadyMix, Inc., Respondent, Turner Construction Company, Defendant/Third-PartyPlaintiff-Respondent-Appellant, and Elite Ready Mix Corporation, Appellant-Respondent, et al.,Defendants. Commodore Construction Corp., Third-PartyDefendant-Respondent. |
—[*1] Massimo & Panetta, P.C., Garden City, N.Y. (Frank C. Panetta of counsel), forplaintiff-respondent-appellant. Malapero & Prisco, LLP, New York, N.Y. (Frank J. Lombardo of counsel), fordefendant/third-party plaintiff-respondent-appellant. Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), fordefendant-respondent. Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the defendant Elite Ready MixCorporation appeals, as limited by its brief and a letter dated July 22, 2009, from so much of anorder of the Supreme Court, Nassau County (Martin, J.), entered September 30, 2008, as deniedthose branches of its cross motion which were for summary judgment dismissing the causes ofaction to recover damages for violations of Labor Law §§ 200 and 241 (6) andcommon-law negligence insofar as asserted against it, and granted that branch of the motion ofthe defendant Cross Ready Mix, Inc., which was for summary judgment dismissing its crossclaims for common-law indemnification and contribution asserted against that defendant, theplaintiff separately appeals, as limited by his brief, from so much of the same order as grantedthose branches of the motion of the defendant Cross Ready Mix, Inc., and the cross motion of thedefendant/third-party plaintiff, Turner Construction Company, which were for summaryjudgment dismissing the causes of action to recover damages for violations of Labor Law§ 200 and common-law negligence insofar as asserted against each of those parties, andthe defendant/third-party plaintiff, Turner Construction Company, separately appeals, as limitedby its notice of appeal and brief, from so much of the same order as denied that branch of itscross motion which was for summary judgment on the third-party complaint and [*2]granted that branch of the motion of the third-party defendantwhich was for summary judgment dismissing the third-party complaint.
Ordered that the appeal from so much of the order as denied that branch of the cross motionof the defendant Elite Ready Mix Corporation which was for summary judgment dismissing thecause of action to recover damages for a violation of Labor Law § 241 (6) insofar asasserted against it is dismissed as academic, without costs or disbursements, in light of the entryof an order entered April 21, 2009, which, upon renewal, inter alia, in effect, vacated thedetermination in the order entered September 30, 2008, denying that branch of the cross motionand thereupon granted that branch of the cross motion; and it is further,
Ordered that the order entered September 30, 2008, is modified, on the law, (1) by deletingthe provisions thereof granting those branches of the motion of the defendant Cross Ready Mix,Inc., which were for summary judgment dismissing the causes of action to recover damages forviolations of Labor Law § 200 and common-law negligence and all cross claims insofar asasserted against it, and substituting therefor a provision denying those branches of the motion,and (2) by deleting the provision thereof granting the motion of the third-party defendant forsummary judgment dismissing the third-party complaint, and substituting therefor a provisiondenying the motion; as so modified, the order is affirmed insofar as appealed from, without costsor disbursements.
As the general contractor of a construction site where a commercial building was beingrenovated, the defendant/third-party plaintiff, Turner Construction Company (hereinafterTurner), hired the third-party defendant, Commodore Construction Corp. (hereinafterCommodore), to perform certain concrete and masonry work. In turn, Commodore hired thedefendant Cross Ready Mix, Inc. (hereinafter Cross Ready Mix), to deliver the concretenecessary for, among other things, creating the concrete bases for approximately four light postsoutside the building.
On the day of the accident that is the subject of this action, Cross Ready Mix had committedto making more deliveries than it could fulfill using its own trucks. In order to make all of itsdeliveries, it hired two trucks and accompanying drivers from the defendant Elite Ready MixCorporation (hereinafter Elite Ready Mix) for the day. Cross Ready Mix sent a cement truck anddriver to the construction site where, upon arrival, the driver began pouring cement into certainforms used to create concrete curbs in front of the building. Thereafter, the truck proceeded tothe back of the building, where the plaintiff and his coworker, Michael Schutt, both of whomwere Commodore employees, were preparing the forms into which the concrete would be pouredfor the light post bases. While the plaintiff and Schutt had their backs to the truck, the driverbegan to back up in their direction. Upon seeing this, Schutt attempted to make himself visible inthe driver's side-view mirror so that he could direct him to stop backing up. As Schutt was tryingto position himself in this manner, he witnessed the truck back up over a pile of debris and thetruck to tilt to one side, causing the 12-foot chute attached to the back of the truck to swing andstrike the plaintiff, knocking him into the hole surrounding the form for the light post base. Theplaintiff allegedly sustained injuries as a result of this contact with the chute and his subsequentfall.
The plaintiff commenced this action against Turner, Cross Ready Mix, and Elite Ready Mix,alleging violations of Labor Law §§ 200, 240 (1) and § 241 (6), andcommon-law negligence. Turner Construction commenced a third-party action againstCommodore, seeking contractual indemnification, among other things. Cross Ready Mix movedfor summary judgment dismissing the complaint and all cross claims insofar as asserted againstit. Elite Ready Mix cross-moved for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it. Commodore moved for summary judgment dismissing thethird-party complaint. Turner cross-moved for summary judgment dismissing the complaint andall cross claims insofar as asserted against it, as well as on the third-party complaint.
In an order entered September 30, 2008, the Supreme Court, inter alia, denied those branchesof the motion of Cross Ready Mix, and those branches of the cross motions of Elite Ready Mixand Turner, which were for summary judgment dismissing the Labor Law § 241 (6) causeof [*3]action insofar as asserted against each of them. TheSupreme Court granted those branches of Cross Ready Mix's motion and Turner's cross motionwhich were for summary judgment dismissing the Labor Law §§ 200 and 240 (1)causes of action, and the common-law negligence cause of action insofar as asserted against eachof them. The Supreme Court also granted that branch of the cross motion of Elite Ready Mixwhich was for summary judgment dismissing the Labor Law § 240 (1) cause of actioninsofar as asserted against it, but denied those branches of its cross motion which were forsummary judgment dismissing the Labor Law § 200 and common-law negligence causesof action insofar as asserted against it. The Supreme Court also denied that branch of Turner'scross motion which was for summary judgment on the third-party complaint, and grantedCommodore's motion for summary judgment dismissing the third-party complaint, apparentlyand mistakenly concluding that Turner had been dismissed from the action. We modify.
Where, as here, a Labor Law § 200 claim arises out of alleged defects or dangersresulting from a subcontractor's methods or materials, recovery against the owner or generalcontractor cannot be had unless it is shown that the party to be charged had authority tosupervise or control the operation (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d494, 505 [1993]; Cambizaca v NewYork City Tr. Auth., 57 AD3d 701, 702 [2008]; Ortega v Puccia, 57 AD3d 54, 62 [2008]). "A defendant has theauthority to control the work for the purposes of Labor Law § 200 when that defendantbears the responsibility for the manner in which the work is performed" (Cambizaca v NewYork City Tr. Auth., 57 AD3d at 702; see Ortega v Puccia, 57 AD3d at 62;Warnitz v Liro Group, 254 AD2d 411 [1998]).
Here, the Supreme Court properly granted that branch of Turner's cross motion which wasfor summary judgment dismissing the causes of action to recover damages for common-lawnegligence and a violation of Labor Law § 200. Turner made a prima facie showing ofentitlement to judgment as a matter of law in this regard by demonstrating that it did not haveauthority to supervise or control the work which brought about the plaintiff's injury (seeCambizaca v New York City Tr. Auth., 57 AD3d at 702; Saleh v Saratoga Condominium, 10 AD3d 645, 646 [2004]).
However, the Supreme Court erred in granting that branch of the motion of Cross Ready Mixwhich was for summary judgment dismissing the Labor Law § 200 cause of action insofaras asserted against it. "[L]iability against a subcontractor based upon a claimed violation ofLabor Law § 200 . . . requires a showing that authority was conferred on thesubcontractor to supervise and control the activity which produced the injury" (Kehoe vSegal, 272 AD2d 583, 584 [2000]; see Ramos v Patchogue-Medford School Dist., 73 AD3d 1010[2010]; Romang v Welsbach Elec.Corp., 47 AD3d 789, 789 [2008]). Cross Ready Mix failed to establish, prima facie, thatneither the owner nor Turner conferred authority upon it to supervise or direct the operation ofthe truck within the work site.
Moreover, the Supreme Court erred in granting that branch of the motion of Cross ReadyMix which was for summary judgment dismissing the common-law negligence cause of actioninsofar as asserted against it. An award of summary judgment in favor of a subcontractordismissing a negligence cause of action is improper where the "evidence raise[s] a triable issueof fact as to whether [the subcontractor's] employee created an unreasonable risk of harm thatwas the proximate cause of the injured plaintiff's injuries" (Marano v Commander Elec., Inc., 12 AD3d 571, 572-573 [2004];see Mennerich v Esposito, 4 AD3d399, 400 [2004]; cf. Kelarakos vMassapequa Water Dist., 38 AD3d 717, 718-719 [2007]). The evidence presented byCross Ready Mix did not establish that it did not own the truck which backed into the plaintiff,or that it was not the employer of the truck's driver (see Tabickman v Batchelder St. Condominiums By Bay, LLC, 52AD3d 593, 594 [2008]; Mennerich v Esposito, 4 AD3d at 400-401). Moreover, asthere was an issue of fact as to whether the truck was owned and operated by Elite Ready Mix orCross Ready Mix, an award of summary judgment dismissing the cross claims asserted by EliteReady Mix for common-law indemnification and contribution was not appropriate (see Aragundi v Tishman Realty & Constr.Co., Inc., 68 AD3d 1027, 1029-1030 [2009]; Aronov v Bruins Transp., 294AD2d 523, 524 [2002]).
Inasmuch as the Supreme Court denied that branch of Turner's cross motion which was forsummary judgment dismissing the Labor Law § 241 (6) cause of action insofar as assertedagainst it, it was error for the Supreme Court to grant Commodore's motion for summaryjudgment dismissing the third-party complaint on the ground that Turner had been dismissedfrom the action. [*4]However, the Supreme Court properlydenied that branch of Turner's cross motion which was for summary judgment on the third-partycomplaint, as it was premature for the Supreme Court to reach the issue of contractualindemnification, in light of the outstanding Labor Law § 241 (6) cause of action assertedagainst Turner (see Barnes v DeFoe/Halmar, 271 AD2d 387, 388 [2000]; Chun vEcco III Enters., 268 AD2d 454, 454-455 [2000]). Rivera, J.P., Balkin, Leventhal andRoman, JJ., concur.
Motion by the appellant-respondent on appeals from an order of the Supreme Court, NassauCounty, entered September 30, 2008, to strike Point I of the reply brief of therespondent-appellant Richard J. Erickson. By decision and order on motion of this Court datedFebruary 23, 2010, the motion was referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the motion is denied. Rivera, J.P., Balkin, Leventhal and Roman, JJ., concur.