| Smith v Broadway 110 Devs., LLC |
| 2011 NY Slip Op 00250 [80 AD3d 490] |
| January 18, 2011 |
| Appellate Division, First Department |
| Raymond Smith et al., Respondents, v Broadway 110Developers, LLC, et al., Respondents-Appellants. BDS Developers, LLC, Sued Herein as Broadway110 Developers, et al., Third-Party Plaintiffs-Respondents-Appellants, v A&B Caulking Co., Inc.,Third-Party Defendant-Appellant-Respondent. |
—[*1] Barry, McTiernan & Moore, New York (Laurel A. Wedinger of counsel), forrespondents-appellants. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondents.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 7, 2009, which,insofar as appealed from as limited by the briefs, granted the part of defendants' motion that soughtsummary judgment on their defense and indemnification claim against third-party defendant (A&B),denied the part of the motion that sought summary judgment on their cause of action against A&B forfailure to procure insurance, and denied the part of the motion that sought summary judgment dismissingthe LaborLaw §§ 240 and 241 (6) causes of action, unanimously affirmed, without costs.
Plaintiffs seek damages for injuries sustained by plaintiff Raymond Smith when the suspendedscaffold that he was straddling swung toward a building and crushed his chest. At the time, plaintiff wasworking for A&B, which had supplied him with the scaffold and supervised his work.
Defendants demonstrated their entitlement to judgment as a matter of law on their defense andindemnification claim against A&B. The terms of the trade contract pursuant to which A&B wasretained by defendant Pavarini McGovern, LLC to perform work on the project required A&B todefend and indemnify defendants where, as here, the claims arose from A&B's work and there was noevidence of any negligence on defendants' part. A&B's contention that there is at least a question of factwhether Pavarini was negligent is unsupported. Indeed, the [*2]courtdismissed the Labor Law § 200 and common-law negligence causes of action, and there is noevidence that any of defendants' acts or omissions contributed to plaintiff's accident. Nor does theindemnification provision violate General Obligations Law § 5-322.1 (1), since it limitsindemnification "[t]o the fullest extent permitted by law" (see Jackson v City of New York, 38 AD3d 324, 324-325 [2007]).
Defendants failed to eliminate all issues of fact as to A&B's alleged failure to procure insurance,which is the subject of a declaratory judgment action. Nor did they eliminate all issues of fact as to theLabor Law § 240 (1) cause of action, since the record raises the inference that plaintiff'saccident was one "in which the scaffold . . . proved inadequate to shield the injuredworker from harm directly flowing from the application of the force of gravity to an object or person"(Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [emphasis omitted]; see Runner v New York Stock Exch., Inc.,13 NY3d 599, 605 [2009] [where the injury was "the direct consequence of a failure to providestatutorily required protection against a risk plainly arising from a workplace elevation differential"]).Moreover, plaintiff testified that, when the scaffold started to swing, he grabbed onto it to avoid falling(see Pesca v City of New York, 298 AD2d 292 [2002]).
Defendants also failed to meet their burden of demonstrating either that no violations of theIndustrial Code (12 NYCRR) provisions cited by plaintiff (§§ 23-5.8, 23-5.9) occurredor that any violation that occurred was not a proximate cause of plaintiff's injury (see Potter v NYC Partnership Hous. Dev. FundCo., Inc., 13 AD3d 83, 85 [2004]). Concur—Gonzalez, P.J., Mazzarelli, Moskowitz,Acosta and RomÁn, JJ. [Prior Case History: 2009 NY Slip Op 30756(U).]