| Poracki v St. Mary's R.C. Church |
| 2011 NY Slip Op 02646 [82 AD3d 1192] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Witold J. Poracki, Respondent-Appellant, v St. Mary'sRoman Catholic Church, Defendant/Third-Party Plaintiff-Appellant-Respondent, and ABCConstruction Contracting, Defendant/Third-Party Defendant-Respondent, et al., Defendant. (Anda Second Third-Party Action.) |
—[*1] Dinkes & Schwitzer, P.C., New York, N.Y. (Andrea M. Arrigo of counsel), forrespondent-appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y., for defendant/third-partydefendant-respondent.
In a consolidated action to recover damages for personal injuries, the defendant/third-partyplaintiff, St. Mary's Roman Catholic Church, doing business as St. Mary's Star of the Sea,appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Kramer, J.), dated December 22, 2009, as granted the plaintiff's motion for summary judgmenton the issue of liability on the Labor Law § 240 (1) cause of action, granted that branch ofthe motion of the defendant/third-party defendant, ABC Construction Contracting, which was forsummary judgment dismissing the third-party complaint insofar as asserted against it, and deniedthat branch of its cross motion which was for summary judgment on its third-party cause ofaction for common-law indemnification against the defendant/third-party defendant, ABCConstruction Contracting, and the plaintiff cross-appeals from so much of the same order asgranted that branch of the motion of the defendant/third-party defendant, ABC ConstructionContracting, which was for summary judgment dismissing the causes of action alleging aviolation of Labor Law § 200 and common-law negligence insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of the defendant/third-party defendant, ABC ConstructionContracting, which were for summary judgment dismissing the cause of action allegingcommon-law negligence and the third-party causes of action alleging common-lawindemnification and contribution insofar as asserted against it, and substituting thereforprovisions denying those branches of the motion; as so modified, the order is affirmed insofar asappealed and cross-appealed from, without costs or disbursements.[*2]
The defendant/third-party plaintiff, St. Mary's RomanCatholic Church, doing business as St. Mary's Star of the Sea (hereinafter St. Mary's), hiredNicholson & Galloway as the general contractor to perform restoration work on the exterior of itschurch. Nicholson & Galloway then hired the defendant Colgate Scaffolding Corp. (hereinafterColgate) to erect scaffolding for the project and the defendant/third-party defendant, ABCConstruction Contracting (hereinafter ABC), to perform lead and asbestos abatement on theexterior walls of the church.
On the day of the accident that is the subject of this action, the plaintiff, an employee ofNicholson & Galloway, was instructed by his foreman to replace wooden planks that had beenremoved from the scaffolding along the church tower. The removed planks created atwo-foot-wide opening between the church wall and the level of scaffolding. The plaintiffallegedly fell through the opening in the scaffold to the church roof as he was in the process ofreplacing the removed planks, causing him to sustain injuries.
The plaintiff commenced this action against St. Mary's and Colgate, alleging violations ofLabor Law §§ 200, 240 (1) and § 241 (6), and common-law negligence. St.Mary's commenced a third-party action against ABC seeking, inter alia, common-lawindemnification and contribution. The plaintiff then commenced a separate action against ABCalleging violations of Labor Law §§ 200, 240 (1) and § 241 (6), andcommon-law negligence. Both of the plaintiff's actions were consolidated by order of theSupreme Court dated June 23, 2006.
Following the conclusion of discovery, the plaintiff moved for summary judgment on theissue of liability on his Labor Law § 240 (1) cause of action, and Colgate and ABC movedfor summary judgment dismissing the complaint and all cross claims and third-party causes ofaction insofar as asserted against them. St. Mary's cross-moved, inter alia, for summary judgmenton its third-party cause of action alleging common-law indemnification against ABC. In an orderdated October 2, 2009, the Supreme Court granted Colgate's motion for summary judgment, andnone of the parties appealed from that order. Subsequently, the plaintiff withdrew his Labor Law§ 240 (1) and § 241 (6) causes of action insofar as asserted against ABC.
In the order appealed from, the Supreme Court, inter alia, granted the plaintiff's motion forsummary judgment on the issue of liability on his Labor Law § 240 (1) cause of actionagainst St. Mary's, granted ABC's motion for summary judgment dismissing the complaint andthe third-party complaint insofar as asserted against it, and denied that branch of St. Mary's crossmotion which was for summary judgment on its third-party cause of action for common-lawindemnification against ABC. We modify.
Labor Law § 240 (1) imposes a nondelegable duty upon owners and generalcontractors to provide safety devices to protect workers from elevation-related risks (seeStriegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 [2003]; Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 500-501 [1993]; Barr v 157 5 Ave., LLC, 60 AD3d796, 797 [2009]). To recover under Labor Law § 240 (1), the plaintiff must demonstrate aviolation of the statute and that such violation proximately caused his or her injuries (seeRobinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Cahill v Triborough Bridge &Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d 280, 287 [2003]). "Where there is no statutory violation, or where the plaintiffis the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law§ 240 (1)" (Treu v Cappelletti, 71 AD3d 994, 997 [2010]; see Robinson v EastMed. Ctr., LP, 6 NY3d at 554; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3dat 39; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290).
Here, the plaintiff made a prima facie showing of his entitlement to judgment as a matter oflaw on his Labor Law § 240 (1) cause of action by demonstrating that he was not providedwith safety devices to properly protect him from the elevation-related risk created by thetwo-foot-wide scaffold opening, and that this failure proximately caused his accident (seeOrtiz v 164 Atl. Ave., LLC, 77 AD3d 807 [2010]; Tama v Gargiulo Bros., Inc., 61AD3d 958, 960 [2009]; Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695[2006]). In opposition, St. Mary's failed to raise a triable issue of fact as to whether the plaintiff'sconduct was the sole proximate cause of his own injuries (see Gallagher v New YorkPost, 14 NY3d 83, 88-89 [2010]; Zong Mou Zou v Hai Ming Constr. Corp., 74AD3d 800, 801 [2010]; [*3]Treu v Cappelletti, 71 AD3dat 997; Valensisi v Greens at Half Hollow, LLC, 33 AD3d at 695-696; cf. Cahill vTriborough Bridge & Tunnel Auth., 4 NY3d at 39-40). Accordingly, the Supreme Courtproperly granted the plaintiff's motion for summary judgment on the issue of liability on hisLabor Law § 240 (1) cause of action against St. Mary's.
The Supreme Court also properly granted that branch of ABC's motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 200insofar as asserted against it. "A subcontractor may not be held liable under Labor Law §200 . . . where it does not have authority to supervise or control the work thatcaused the plaintiff's injury" (Tomyuk v Junefield Assoc., 57 AD3d 518, 521 [2008];see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 523 [2010]; Kelarakos vMassapequa Water Dist., 38 AD3d 717, 718 [2007]). Here, it is undisputed that ABC did notsupervise or control the plaintiff's work when he fell through the scaffold opening.
However, the Supreme Court erred in granting that branch of ABC's motion which was forsummary judgment dismissing the cause of action alleging common-lawnegligence insofar as asserted against it. "[A] subcontractor . . . may be held liablefor negligence where the work it performed created the condition that caused the plaintiff's injuryeven if it did not possess any authority to supervise and control the plaintiff's work or work area"(Tabickman v Batchelder St. Condominiums By Bay, LLC, 52 AD3d 593, 594 [2008];see Tomyuk v Junefield Assoc., 57 AD3d at 522). "An award of summary judgment infavor of a subcontractor dismissing a negligence cause of action is improper where the 'evidenceraise[s] a triable issue of fact as to whether [the subcontractor's] employee created anunreasonable risk of harm that was the proximate cause of the injured plaintiff's injuries' "(Erickson v Cross Ready Mix, Inc., 75 AD3d at 523, quoting Marano v CommanderElec., Inc., 12 AD3d 571, 572-573 [2004]; see Kelarakos v Massapequa Water Dist.,38 AD3d at 719; Bell v Bengomo Realty, Inc., 36 AD3d 479, 481 [2007]).
Here, the deposition testimony of the various witnesses submitted by ABC in support of itsmotion did not eliminate a triable issue of fact as to whether ABC created the scaffold opening.The president of ABC testified at his deposition that, in order to complete the lead abatementwork, which was done before any other restoration work could commence, ABC workersremoved the scaffold planks to access the entire surface area of the church walls as they movedfrom top to bottom and to place them on lower levels that did not contain planking. Herepeatedly stated either that his workers did not replace the planking or that he did not know ifhis workers would replace the planking before moving on to the next portion of the work.Although he indicated that his workers would not need to remove the planking on the level wherethe plaintiff's accident occurred in order to complete the lead abatement work there, this assertionwas not based on personal knowledge, and he admitted that he did not know whether his workersmoved the planking in question. Moreover, the plaintiff testified at his deposition that when hefirst arrived on the project, he saw ABC employees working along the wall where his accidentoccurred, and the scaffold opening was present then and remained for the entire time he workedon the site prior to his accident. The plaintiff also frequently observed ABC workers movescaffold planks while on the project.
Accordingly, the Supreme Court erred in granting that branch of ABC's motion which wasfor summary judgment dismissing the common-law negligence cause of action insofar as assertedagainst it.
Since there are triable issues of fact as to whether ABC was negligent and, if so, whether thisnegligence caused the plaintiff's injuries, ABC is not entitled to summary judgment dismissingthe third-party causes of action asserted by St. Mary's for common-law indemnification andcontribution (see Erickson v Cross Ready Mix, Inc., 75 AD3d at 523; Aragundi vTishman Realty & Constr. Co., Inc., 68 AD3d 1027, 1029-1030 [2009]), and St. Mary's isnot entitled to summary judgment on its third-party cause of action for common-lawindemnification against ABC (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681,684-685 [2005]). Rivera, J.P., Angiolillo, Eng and Sgroi, JJ., concur.