| Handville v MJP Contrs., Inc. |
| 2010 NY Slip Op 07219 [77 AD3d 1471] |
| October 8, 2010 |
| Appellate Division, Fourth Department |
| Raymond S. Handville et al., Respondents, v MJP Contractors,Inc., Respondent-Appellant, et al., Defendants. |
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Appeal and cross appeal from an order of the Supreme Court, Oswego County (Norman W.Seiter, Jr., J.), entered June 29, 2009 in a personal injury action. The order, inter alia, denied themotion of plaintiffs for partial summary judgment and the cross motion of defendant MJP Contractors,Inc. for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law by grantingthat part of plaintiffs' motion for partial summary judgment on liability with respect to the Labor Law§ 240 (1) cause of action, by denying the motion of defendant MJP Contractors, Inc. seekingleave to amend its answer, and by granting those parts of the cross motion of that defendant seekingsummary judgment dismissing the Labor Law § 200 and common-law negligence causes ofaction against it, and the Labor Law § 241 (6) cause of action against it insofar as that cause ofaction is based on the alleged violation of 12 NYCRR 23-1.21 (b) (4) (ii), and dismissing those causesof action to that extent against it, and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence action torecover damages for injuries allegedly sustained by Raymond S. Handville (plaintiff) when he fell from aladder scaffold at a construction site. Defendant MJP Contractors, Inc. (MJP) was the generalcontractor at the site. Supreme Court, in a "bench decision and order" (hereafter, order), denied themotion of plaintiffs for partial summary judgment on liability under Labor Law § 240 (1) and§ 241 (6) and granted the motion of MJP seeking leave to amend its answer to include acounterclaim for common-law indemnification "and/or" contribution. In addition, MJP cross-moved forsummary judgment dismissing the complaint against it, and the court granted only that part of the crossmotion with respect to the Labor Law § 241 (6) cause of action to the extent that it was basedon certain regulations that are not at issue herein. We conclude that the court erred in denying that partof the motion of plaintiffs for partial summary judgment on liability with respect to the Labor Law§ 240 (1) cause of action. We further conclude that the court erred in granting the motion ofMJP for leave to amend its answer and in denying those parts of the cross motion of MJP for summaryjudgment dismissing the Labor Law § 200 and common-law negligence causes of action againstit, as well as the Labor Law § 241 (6) cause of action against it insofar as it is based on thealleged violation of 12 NYCRR 23-1.21 (b) (4) (ii). We therefore modify the order accordingly.
We agree with plaintiffs on their appeal that they met their initial burden on that part of their motionwith respect to Labor Law § 240 (1) (see Cherry v Time Warner, Inc., 66 AD3d 233, 236 [2009]), and wereject the contention of MJP that it raised a triable issue of fact whether the actions of plaintiff were thesole proximate cause of his injuries under Labor Law § 240 (1) (see Ewing v Brunner Intl., Inc., 60 AD3d1323 [2009]; see generally Gallagher vNew York Post, 14 NY3d 83, 88 [2010]). Although MJP submitted evidence establishingthat proper safety equipment, i.e., scaffolding approved by the Occupational Safety and HealthAdministration and related safety lines, was present at the work site, MJP did not present any evidenceestablishing that plaintiff had been instructed to use that equipment (see Ganger v Anthony Cimato/ACP Partnership, 53 AD3d 1051,1052-1053 [2008]; cf. Lovall v GravesBros., Inc., 63 AD3d 1528, 1529 [2009]).
We also agree with plaintiffs on their appeal that the court erred in granting the motion of MJP forleave to amend its answer inasmuch as it is well settled that such leave "should not be granted where, ashere, the proposed amendment lacks merit" (Hodgson, Russ, Andrews, Woods & Goodyear vIsolatek Intl. Corp., 300 AD2d 1047, 1048 [2002]). Workers' Compensation Law § 11provides in relevant part that an employer shall not be liable to any third party for contribution andindemnification for injuries sustained by an employee acting within the scope of his or her employmentunless the injured worker had sustained a " 'grave injury,' " and there is no allegation in this case thatplaintiff sustained such an injury. We reject the contention of MJP that it may seek contribution andindemnification because plaintiff failed to obtain workers' compensation insurance for himself. Evenassuming, arguendo, that plaintiff was a self-employed person who was required pursuant to Workers'Compensation Law § 54 (8) to obtain workers' compensation insurance for persons employedby him, we conclude that there is no requirement in section 54 that he obtain such insurance for himself.Thus, plaintiff is not liable for contribution or indemnification pursuant to Workers' Compensation Law§ 11 (cf. Boles v Dormer Giant,Inc., 4 NY3d 235, 239-240 [2005]). Inasmuch as MJP asserts no contractual or other basisfor the counterclaim (cf. Rodrigues v N & SBldg. Contrs., Inc., 5 NY3d 427, 431-432 [2005]), the proposed amendment is patentlywithout merit.
We agree with MJP on its cross appeal, however, that the court erred in denying those parts of itscross motion with respect to the Labor Law § 200 and common-law negligence causes ofaction. MJP "established its entitlement to judgment as a matter of law 'by demonstrating that it did notexercise supervisory control over . . . plaintiff's work[ ] and that it neither created nor hadactual or constructive knowledge of the allegedly dangerous condition' " on the premises (Alnutt v J&E Elec., 28 AD3d 1214,1215 [2006]; see generally Burkoski vStructure Tone, Inc., 40 AD3d 378, 381 [2007]), and plaintiffs failed to raise a triable issue offact (see Talbot v Jetview Props., LLC, 51 AD3d 1396, 1397 [2008]; cf. Shaheen v Hueber-Breuer Constr. Co., 4AD3d 761, 763 [2004]).
We further agree with MJP on its cross appeal that the court erred in denying that part of its crossmotion with respect to the Labor Law § 241 (6) cause of action insofar as it is based on thealleged violation of 12 NYCRR 23-1.21 (b) (4) (ii). That section of the Industrial Code does not applyto this case, in which plaintiff fell from a ladder pick rather than from the rungs of a ladder (see Evans v Syracuse Model NeighborhoodCorp., 53 AD3d 1135, 1138 [2008]; see also Amantia v Barden & Robeson Corp., 38 AD3d 1167,1168-1169 [2007]). Finally, we reject the contention of MJP that the court erred in denying that part ofits cross motion with respect to the Labor Law § 241 (6) cause of action insofar as it is based onthe alleged violation of 12 NYCRR [*2]23-5.17 (c). There is a triableissue of fact whether the ladder scaffold was "placed, fastened or held, or [was] so equipped withacceptable means as to prevent slipping" (id.). Present—Smith, J.P., Peradotto, Lindley,Sconiers and Pine, JJ.