| Fox v H&M Hennes & Mauritz, L.P. |
| 2011 NY Slip Op 03205 [83 AD3d 889] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Rory Fox, Respondent, v H&M Hennes & Mauritz, L.P.,Defendant/Third-Party Plaintiff-Appellant. Maintenance Etc., LLC, Third-PartyDefendant-Respondent. (And a Fourth-Party Action.) |
—[*1] Popkin & Popkin, LLP (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaacand Michael H. Zhu], of counsel), for plaintiff-respondent. Ganfer & Shore, LLP, New York, N.Y. (Mark A. Berman and Matthew R. Maron ofcounsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the defendant/third-party plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County,(Martin, J.), dated May 28, 2010, as granted the plaintiff's motion for summary judgment on theissue of liability on the Labor Law § 240 (1) cause of action, and granted the third-partydefendant's motion for summary judgment dismissing the third-party complaint.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff was employed by the fourth-party defendant Garrity Electric, Inc. (hereinafterGarrity), as a mechanic performing general electrical contracting work. Pursuant to an agreementbetween the defendant/third-party plaintiff, H&M Hennes & Mauritz, L.P. (hereinafter H&M),and the third-party defendant/fourth-party plaintiff Maintenance, Etc., LLC (hereinafterMaintenance), which provides retail companies with vendors for construction services, Garritywas hired to replace bulbs and ballasts/transformers in 78 overhead light fixtures, locatedapproximately 12 feet above the floor, in a retail store leased by H&M. Garrity had done businesswith H&M since 2000, performing electrical work for which it was paid the sum of $30,000 to$50,000 per year. Garrity furnished a team of "seven or eight" workers, including the plaintiff,which was led by a team foreman, to perform the subject work in the H&M store. The plaintiffallegedly was injured when he fell from a ladder while engaged in this work. The Supreme Court,inter alia, granted the plaintiff's motion for summary judgment on the issue of liability on theLabor Law § 240 (1) cause of action. We affirm the order insofar as appealed from.
Labor Law § 240 (1) protects workers from elevation-related hazards while they are[*2]involved in certain enumerated work activities (see Panekv County of Albany, 99 NY2d 452 [2003]). The statute applies when an employee is engaged"in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building orstructure" (Labor Law § 240 [1]; see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526,528 [2003]). Thus, where a worker is engaged in routine maintenance, the statute is inapplicable(see Smith v Shell Oil Co., 85 NY2d 1000 [1995]).
Contrary to H&M's contention, the provisions of the statute apply to the facts of this case.When viewed in isolation, the plaintiff's task of replacing a transformer might be consideredroutine maintenance (see Deoki v AbnerProps. Co., 48 AD3d 510 [2008]; Sanacore v Solla, 284 AD2d 321 [2001]).However, the issue of whether any particular task "falls within section 240 (1) must bedetermined on a case-by-case basis, depending on the context of the work" (Prats vPort Auth. of N.Y. & N.J., 100 NY2d 878, 883 [2003] [emphasis added]). Here, in view ofthe agreement between Garrity and H&M, the plaintiff's position as a mechanic at Garrityassigned to perform general electrical work, and the overall scope of the entire job which Garritywas engaged to perform at the store, the task which the plaintiff was performing at the time of theaccident was a repair, as opposed to routine maintenance (see Prats v Port Auth. of N.Y. &N.J., 100 NY2d at 883; Fitzpatrickv State of New York, 25 AD3d 755 [2006]; see also Nowakowski v Douglas Elliman Realty, LLC, 78 AD3d1033 [2010]; cf. Deoki v AbnerProps. Co., 48 AD3d 510 [2008]).
"In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establishthat the statute was violated and that the violation was a proximate cause of his or her injuries"(Rudnik v Brogor Realty Corp., 45AD3d 828, 829 [2007]). Here, the plaintiff made a prima facie showing of entitlement tojudgment as a matter of law on the issue of liability via the submission of his depositiontestimony, which demonstrated that he fell when a "old and wobbly" aluminum ladder, with norubber on its feet, and which had been supplied by H&M, "kicked out" from under him while hewas replacing the light fixture transformer (see McCaffery v Wright & Co. Constr., Inc., 71 AD3d 842 [2010];Barr v 157 5 Ave., LLC, 60 AD3d796 [2009]; Blair v Cristani, 296 AD2d 471 [2002]; Gardner v New York CityTr. Auth., 282 AD2d 430 [2001]). In response, H&M failed to raise a triable issue of fact(see Zuckerman v City of New York, 49 NY2d 557 [1980]). That the plaintiff may havebeen the sole witness to the accident does not preclude summary judgment in his favor (see McCaffery v Wright & Co. Constr.,Inc., 71 AD3d 842 [2010]; YinMin Zhu v Triple L. Group, LLC, 64 AD3d 590 [2009]; Perrone v Tishman Speyer Props., L.P.,13 AD3d 146 [2004]). Moreover, H&M " 'did not offer any evidence, other than merespeculation, that undermined the prima facie case or presented a bone fide issue regarding theplaintiff's credibility as to a material fact' " (McCaffery v Wright & Co., Constr., Inc., 71AD3d at 843, quoting Rivera v DafnaConstr. Co., Ltd., 27 AD3d 545, 545-546 [2006]; see Leconte v 80 E. End Owners Corp., 80 AD3d 669 [2011]; Westphal v Greyhound Lines, Inc., 32AD3d 429 [2006]).
The Supreme Court also properly granted Maintenance's motion for summary judgmentdismissing the third-party complaint for contribution and indemnification. Maintenanceestablished its prima facie entitlement to judgment as a matter of law by demonstrating that itwas not a contractor, but merely a facilitator that brokered the work agreement between H&Mand Garrity, that it was not negligent, and that it did not have the authority to supervise or controlthe work giving rise to the plaintiff's injuries (see Mid-Valley Oil Co., Inc. v Hughes Network Sys., Inc., 54 AD3d394 [2008]; see also Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]; Huerta v Three Star Constr. Co., Inc.,56 AD3d 613 [2008]; Torres v LPELand Dev. & Constr., Inc., 54 AD3d 668 [2008]). In opposition, H&M failed to raise atriable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Prudenti,P.J., Dillon, Balkin and Sgroi, JJ., concur.