| Temperino v DRA, Inc. |
| 2010 NY Slip Op 06084 [75 AD3d 543] |
| July 13, 2010 |
| Appellate Division, Second Department |
| Dario Temperino, Respondent, v DRA, Inc.,Defendant/Third-Party Plaintiff-Respondent, Rockefeller University, Defendant/Third-PartyPlaintiff/Second Third-Party Plaintiff-Respondent, and M & J Mechanical Corp.,Defendant/Third-Party Defendant-Respondent, et al., Defendant. Gloron Agency, Inc.,Third-Party Defendant/Second Third-Party Defendant-Appellant; Rutgers Casualty InsuranceCo., Third-Party Defendant-Respondent, et al., Second Third-PartyDefendants. |
—[*1] Barry, McTiernan & Moore, New York, N.Y. (Laurel A. Wedinger of counsel), fordefendant Olympic Plumbing & Heating Services, Inc.
In an action to recover damages for personal injuries, the third-party defendant/secondthird-party defendant, Gloron Agency, Inc., appeals, as limited by its brief, from so much of anorder of the Supreme Court, Kings County (Ambrosio, J.), dated December 1, 2008, as denied itscross motion, in effect, for summary judgment dismissing the complaint insofar as assertedagainst the defendant/third-party plaintiff, DRA, Inc., dismissing all cross claims of thedefendant/third-party plaintiff/second third-party plaintiff, Rockefeller University, assertedagainst the defendant/third-party plaintiff, DRA, Inc., and for summary judgment on thethird-party claim of the defendant/third-party plaintiff, DRA, Inc., against the third-partydefendant Rutgers Casualty Insurance Co.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the cross motion of the third-party defendant/second third-party defendant,[*2]Gloron Agency, Inc., which were, in effect, for summaryjudgment dismissing the complaint insofar as asserted against the defendant/third-party plaintiff,DRA, Inc., and dismissing the cross claim of the defendant/third-party plaintiff/secondthird-party plaintiff, Rockefeller University, asserted against the defendant/third-party plaintiff,DRA, Inc., and substituting therefor provisions granting those branches of the cross motion; asso modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The defendant/third-party plaintiff, DRA, Inc. (hereinafter DRA), contracted with thedefendant/third-party plaintiff/second third-party plaintiff, Rockefeller University (hereinafterthe University), to perform carpentry work as part of the University's renovation of one of itsbuildings. The plaintiff, an electrician, allegedly was injured when he fell from a ladder duringthe course of his work on the renovation project. DRA moved for summary judgment dismissingthe complaint insofar as asserted against it and all cross claims asserted against it by theUniversity, and for summary judgment on its claim against the third-party defendant RutgersCasualty Insurance Co. The complaint alleged claims sounding in common-law negligence andviolations of Labor Law §§ 200, 240 (1) and § 241 (6). The third-partydefendant/second third-party defendant, Gloron Agency, Inc. (hereinafter Gloron), cross-moved,among other things, in effect, for summary judgment dismissing the complaint and all crossclaims insofar as asserted against DRA, and thereupon, to dismiss the second third-partycomplaint insofar as asserted against it as academic. In Gloron's supporting attorney affirmation,it adopted and incorporated DRA's arguments and, in effect, sought the same relief as DRA. TheSupreme Court, inter alia, denied DRA's motion and Gloron's cross motion. Gloron appeals thedenial of its cross motion, essentially standing in DRA's shoes vis-à-vis the plaintiff andthe University (see CPLR 1008).
"Labor Law § 240 (1) imposes a nondelegable duty upon owners, contractors, or theiragents to provide proper protection to a worker performing certain types of construction work"(Aversano v JWH Contr., LLC, 37AD3d 745, 746 [2007]). "A general contractor will be held liable under [Labor Law §240 (1)] if it was responsible for coordinating and supervising the entire construction project andwas invested with a concomitant power to enforce safety standards and to hire responsiblecontractors" (id.). In order to hold a contractor such as DRA "absolutely liable forviolations of Labor Law §§ 240 and 241, there must be a showing that [it] had theauthority to supervise and control the work giving rise to these duties" (Kehoe v Segal,272 AD2d 583, 584 [2000]). "The determinative factor on the issue of control is not whether asubcontractor furnishes equipment but whether it has control of the work being done and theauthority to insist that proper safety practices be followed" (id.; see Everitt vNozkowski, 285 AD2d 442, 443 [2001]).
Here, the record established that DRA was not a general contractor or a statutory agent forpurposes of liability under Labor Law § 240 (1) and § 241 (6). Rather, the recordshowed that the University, not DRA, selected, paid, and coordinated the contractors, scheduledand monitored the work, ensured that its safety guidelines were followed, and retained theauthority to stop the work. In opposition, the plaintiff failed to show the existence of a triableissue of fact. Accordingly, DRA was entitled to summary judgment dismissing the Labor Law§ 240 (1) and § 241 (6) claims insofar as asserted against it (see Aversano vJWH Contr., LLC, 37 AD3d at 746; Kehoe v Segal, 272 AD2d at 584).
Additionally, DRA was entitled to summary judgment dismissing the Labor Law §200 and common-law negligence claims insofar as asserted against it. At his deposition,Alexander Kogan, the University's associate vice-president for plant operations, testified thatthere were no complaints about, inter alia, debris or sawdust in the construction area, and thatDRA did a good job of cleaning up. DRA's owner, Richard J. Arrabito, testified that DRAcleaned up the dust it created as it was doing its work. Additionally, the plaintiff's depositiontestimony indicated that the ladder he was using at the time of his accident belonged to thedefendant Olympic Plumbing & Heating Services, Inc. The plaintiff also testified that the roomhe was working in "looked clear, clean," and that any sand or dust which might have caused theladder to sway or slip came from sandblasting rather than carpentry. This established that DRAdid not create the condition complained of (see Chowdhury v Rodriguez, 57 AD3d 121 [2008]). In opposition,the plaintiff failed to show the existence of [*3]a triable issue offact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The above recounted testimony was sufficient to make a prima facie showing that DRA hadno responsibility for the plaintiff's injuries. Since, in response, the University failed to show theexistence of a triable issue of fact, its cross claims seeking indemnification against DRA shouldalso have been dismissed (id.).
The parties' remaining contentions are without merit. Rivera, J.P., Florio, Angiolillo andLott, JJ., concur.