| Hamill v Mutual of Am. Inv. Corp. |
| 2010 NY Slip Op 09009 [79 AD3d 478] |
| December 7, 2010 |
| Appellate Division, First Department |
| John Hamill et al., Appellants-Respondents, v Mutual ofAmerica Investment Corporation, Respondent-Appellant and Third-Party Plaintiff. Jones Lang LaSalle,Third-Party Defendant-Respondent. |
—[*1] Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for respondent-appellant. Fiedelman & McGaw, Jericho (Ross P. Masler of counsel), for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 11, 2010,which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summaryjudgment on the Labor Law § 240 (1) cause of action and granted so much of defendant's crossmotion for summary judgment as sought to dismiss that cause of action, sub silentio denied so much ofthe cross motion as sought summary judgment dismissing the Labor Law § 241 (6) and §200 and common-law negligence causes of action, and denied so much of the cross motion as soughtsummary judgment on the third-party complaint for contractual indemnification, unanimously modified,on the law, to deny so much of the cross motion as sought to dismiss the Labor Law § 240 (1)cause of action and to grant so much of the cross motion as sought summary judgment dismissing theLabor Law § 241 (6) and § 200 and common-law negligence causes of action, andotherwise affirmed, without costs.
Plaintiff John Hamill was injured while working as a building engineer employed by third-partydefendant Jones Lang LaSalle Americas in a commercial building owned by defendant Mutual ofAmerica. The accident occurred while plaintiff was standing on a ladder replacing acoustic ceiling tiles.
Plaintiff established prima facie his entitlement to summary judgment on the Labor Law §240 (1) cause of action through his own testimony that he fell to the ground when the ladder on whichwas standing to perform his work shifted and fell (Hart v Turner Constr. Co., 30 AD3d 213 [2006]; Siegel v RRG Fort Greene, Inc., 68 AD3d675, 675 [2009]). He was not required to [*2]offer proof that theladder was defective (Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290-291[2002]).
In opposition, and in support of its cross motion, defendant contended that plaintiff was notengaged in repair work, or any other type of work covered by Labor Law § 240 (1), at the timeof the accident, but was engaged in mere routine maintenance, which is not covered (see Esposito v New York City Indus. Dev.Agency, 1 NY3d 526 [2003]; Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555 [2009]). Defendantrelied on testimony by a Jones Lang executive that plaintiff was simply replacing 3 to 12 water-stainedtiles with acoustic tiles that are kept in stock, which is routine maintenance (see Cullen v UptownStor. Co., 268 AD2d 327 [2000]). Plaintiff, however, described the project as involving thereplacement of a large portion of the drop ceiling, which had been badly damaged by leaks, includingparts of the tracking system that had been rusted. Work such as plaintiff described may constitute arepair of a building or system, within the ambit of section 240 (1) (see Turisse v Dominick Milone,Inc., 262 AD2d 305 [1999]), even if it was not part of a larger renovation project (see e.g. Collins v West 13th St. OwnersCorp., 63 AD3d 621 [2009]). The differing versions of the facts preclude a determination, asa matter of law, whether plaintiff was engaged in repair work or routine maintenance when he wasinjured.
Defendant also contended that plaintiff's conduct was the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d 280 [2003]). Defendant relied on plaintiff's testimony that the ladder appearedto be in good condition, and submitted the testimony of one witness who stated that plaintiff told him hefell because he missed a step while descending the ladder, and another who saw the ladder standingerect after plaintiff fell. The conflict between these witnesses' testimony and plaintiff's testimony that theladder itself shifted and fell presents a triable issue of fact whether plaintiff's injury was attributable todefendant's failure to provide adequate protective devices or was caused solely by plaintiff's ownconduct (see Petrocelli v Tishman Constr.Co., 19 AD3d 145, 145 [2005]).
Defendant established prima facie its entitlement to summary judgment dismissing the Labor Law§ 241 (6) and § 200 and common-law negligence causes of action, and plaintiffs did notoppose those portions of defendant's cross motion.
With respect to the third-party complaint for contractual indemnification, defendant failed to submitany evidence of a "wrongful act or gross negligence" on the part of Jones Lang, which is required totrigger the contractual indemnification provision (see Gomez v Sharon Baptist Bd. of Directors, Inc., 55 AD3d 446[2008]). Concur—Tom, J.P., Andrias, Sweeny, DeGrasse and RomÁn, JJ.