| D'Alto v 22-24 129th St., LLC |
| 2010 NY Slip Op 06291 [76 AD3d 503] |
| August 3, 2010 |
| Appellate Division, Second Department |
| Michael D'Alto, Jr., et al., Respondents, v 22-24 129thStreet, LLC, Respondent-Appellant, and Pacific Lawn Sprinklers, Inc., Appellant-Respondent, etal., Defendants. |
—[*1] Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for respondent-appellant. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Brian J. Shoot andMatthew Jones of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Pacific LawnSprinklers, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (Agate, J.), entered May 4, 2009, as denied those branches of its motion whichwere for summary judgment dismissing the cause of action to recover damages for violation ofLabor Law § 240 (1) insofar as asserted against it and the cross claim for contractualindemnification asserted against it by the defendant 22-24 129th Street, LLC, and the defendant22-24 129th Street, LLC, cross-appeals, as limited by its brief, from so much of the same orderas denied those branches of its cross motion which were for summary judgment dismissing thecause of action to recover damages for violation of Labor Law § 240 (1) insofar asasserted against it and on its cross claim for contractual indemnification insofar as assertedagainst the defendant Pacific Lawn Sprinklers, Inc.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the motion of the defendant Pacific Lawn Sprinklers, Inc., which was for summaryjudgment dismissing the cross claim for contractual indemnification asserted against it by thedefendant 22-24 129th Street, LLC, and substituting therefor a provision granting that branch ofthe motion, and (2) by deleting the provision thereof denying, as premature, that branch of thecross motion of the defendant 22-24 129th Street, LLC, which was for summary judgment on itscross claim for contractual indemnification insofar as asserted against the defendant PacificLawn Sprinklers, Inc., and substituting therefor a provision denying that branch of the crossmotion on the merits; as so modified, the order is affirmed insofar as appealed andcross-appealed from, with one bill of costs to the plaintiffs and the defendant Pacific LawnSprinklers, Inc., payable by the defendant 22-24 129th Street, LLC, and one bill of costs to theplaintiff, payable by the defendant Pacific Lawn Sprinklers, Inc.[*2]
The plaintiff Michael D'Alto, Jr. (hereinafter the injuredplaintiff), alleges that he was injured when he fell while climbing down from the top of a cementtruck parked near the entrance of a construction site located on property owned by the defendant22-24 129th Street, LLC (hereinafter 129th Street), and leased to the defendant Pacific LawnSprinklers, Inc. (hereinafter PLS). Just prior to the accident, the injured plaintiff had completedthe preparations needed for delivering the cement mixture in the truck to the work site. The leasebetween 129th Street and PLS contains, in pertinent part, an indemnification clause providingthat 129th Street "shall not be liable for any damages or injury to [PLS], or any other person, orto any property, occurring on the demised premises or any part thereof, and [PLS] agrees to hold[129th Street] harmless from any claim for damages, no matter how caused."
The injured plaintiff, and his wife suing derivatively, commenced this action against 129thStreet, Pacific Lawn Sprinklers, LLC (hereinafter PLS LLC), Pacific Lawn Sprinklers Franchise,LLC (hereinafter PLS Franchise), and PLS, seeking to recover damages for common-lawnegligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). PLSFranchise moved, PLS and PLS LLC each separately moved, and 129th Street cross-moved,inter alia, for summary judgment dismissing the complaint insofar as asserted against each ofthem. In its motion, PLS also sought summary judgment dismissing the cross claims assertedagainst it by 129th Street. In its cross motion, 129th Street also sought summary judgment on itscross claims for common-law and contractual indemnification insofar as asserted against PLS.The Supreme Court granted those branches of the defendants' respective motions and crossmotion which were for summary judgment dismissing the common-law negligence and LaborLaw §§ 200 and 241 (6) causes of action, but denied those branches of the motionsand cross motion which were for summary judgment dismissing the Labor Law § 240 (1)cause of action. The Supreme Court also denied, as premature, that branch of 129th Street's crossmotion which was for summary judgment on its cross claim for contractual indemnificationinsofar as asserted against PLS, and denied that branch of PLS's motion which was for summaryjudgment dismissing that cross claim. PLS appeals from so much of the order as denied thosebranches of its cross motion which were for summary judgment dismissing the Labor Law§ 240 (1) cause of action insofar as asserted against it and the cross claim for contractualindemnification asserted against it by 129th Street. 129th Street cross-appeals from so much ofthe order as denied those branches of its cross motion which were for summary judgmentdismissing the Labor Law § 240 (1) cause of action insofar as asserted against it and on itscross claim for contractual indemnification insofar as asserted against PLS. We modify.
The Supreme Court properly denied that branch of PLS's motion and that branch of 129thStreet's cross motion which were for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against each of them. Preliminarily, Labor Law §240 (1) " ' "is to be construed as liberally as may be for the accomplishment of the purpose forwhich it was thus framed" ' " (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513[1991], quoting Koenig v Patrick Constr. Co., 298 NY 313, 319 [1949], quotingQuigley v Thatcher, 207 NY 66, 68 [1912]; see Zimmer v Chemung CountyPerforming Arts, 65 NY2d 513, 520-521 [1985]), namely, "to protect construction workersnot from routine workplace risks, but from the pronounced risks arising from construction worksite elevation differentials" (Runner vNew York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see Lombardi v Stout,80 NY2d 290, 296 [1992]). "That the particular work was being performed at a distance from thesite of immediate construction is of no consequence, as it is certain that the work wasnecessitated by virtue of the [cement being prepared for use] in the construction [site] and wasincidental to its movement [to] the construction area" (Struble v John Arborio, Inc., 74AD2d 55, 57 [1980]; cf. Koch v E.C.H. Holding Corp., 248 AD2d 510 [1998]).Moreover, the injured plaintiff's entrance to the work site was delayed by the instruction that hewait in the cement truck in line with other trucks. While waiting, he prepared the cement for useat the work site. Since, at the time of the accident, the injured plaintiff had been preparing thecement mixture in his truck for immediate delivery to the work site approximately 100 feetaway, an activity necessary and incidental to the alteration work occurring at the work site, hisaccident is within the purview of Labor Law § 240 (1) (see Lombardi v Stout, 80NY2d at 296; Johnson v Rapisarda, 262 AD2d 365 [1999]; Struble v John Arborio,Inc., 74 AD2d at 57). Accordingly, we reject the contention of both PLS and 129th Streetthat the injured plaintiff's accident is, as a matter of law, outside of the protections of Labor Law§ 240 (1) because he was approximately 100 feet away from the work site when theaccident occurred and those defendants, thus, failed to establish their prima facie entitlements tojudgment as a matter [*3]of law dismissing the Labor Law§ 240 (1) cause of action insofar as asserted against each of them. Consequently, we neednot consider the sufficiency of the plaintiffs' opposition papers.
In addition, PLS and 129th Street failed to establish, prima facie, that the injured plaintiffwas negligent, and that any such negligence on his part was the sole proximate cause of theaccident (see Gallagher v New YorkPost, 14 NY3d 83, 88 [2010]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,290 [2003]).
However, contrary to the Supreme Court's determination, PLS was entitled to summaryjudgment dismissing 129th Street's cross claim for contractual indemnification insofar asasserted against it. A lease is a contract (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d470, 475 [2004]; Genovese DrugStores, Inc. v William Floyd Plaza, LLC, 63 AD3d 1102, 1103 [2009]). "[W]hen partiesset down their agreement in a clear, complete document, their writing should as a rule beenforced according to its terms" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162[1990]; see R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 32 [2002]; Step-Murphy, LLC v B&B Bros. RealEstate Corp., 60 AD3d 841, 844 [2009]).
Here, the subject lease specifically describes the demised premises as "22-42 129th Street" inCollege Point, Queens. The lease's indemnification clause provides, in pertinent part, that 129thStreet "shall not be liable for any . . . injury to . . . any [ ] person. . . on the demised premises or any part thereof" (emphasis added).Clearly, the reference to "demised premises or any part thereof" in the indemnification clauseunambiguously refers to "22-42 29th Street" in College Point, Queens. Moreover, at the time ofthe accident, it is undisputed that the injured plaintiff was not on the demised premises or anypart thereof, but was approximately 100 feet therefrom, preparing cement for delivery to thework site located on the demised premises. Upon our consideration of the lease's description ofthe demised premises and its indemnification clause, we conclude that PLS established its primafacie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff wasnot "on the demised premises or any part thereof." Since 129th Street failed to raise a triableissue of fact in opposition, the Supreme Court should have granted that branch of PLS's motionwhich was for summary judgment dismissing the cross claim for contractual indemnificationasserted against it by 129th Street, and should have denied, on the merits, that branch of 129thStreet's cross motion which was for summary judgment on its cross claim for contractualindemnification insofar as asserted against PLS.
Given the liberal construction afforded Labor Law § 240 (1) (see Rocovich vConsolidated Edison Co., 78 NY2d at 513; Zimmer v Chemung County PerformingArts, 65 NY2d at 520-521), in order to effectuate the statute's purpose of "protect[ing]construction workers. . . from the pronounced risks arising from constructionworksite elevation differentials" (Runner v New York Stock Exch., Inc., 13 NY3d at603), in contrast to the strict interpretation afforded unambiguous contractual terms agreed uponby parties (see R/S Assoc. v New York Job Dev. Auth., 98 NY2d at 32; W.W.W.Assoc. v Giancontieri, 77 NY2d at 162; Step-Murphy, LLC v B&B Bros. Real EstateCorp., 60 AD3d at 844), we discern no conflict between our determination that the injuredplaintiff's accident is covered under Labor Law § 240 (1) even though he was not actuallyon the work site, and our determination that the indemnification clause of the lease between129th Street and PLS is not applicable because the injured plaintiff was not on the "demisedpremises or any part thereof" at the time of the accident.
Finally, because the Supreme Court did not decide those branches of PLS's motion and 129thStreet's cross motion for summary judgment which were addressed to 129th Street's cross claimfor common-law indemnification insofar as asserted against PLS, those branches of the motionand cross motion remain pending and undecided. Accordingly, PLS's arguments with respect tothat issue are not properly before this Court (see Katz v Katz, 68 AD2d 536 [1979]).Mastro, J.P., Covello, Eng and Belen, JJ., concur.