| LaRosa v Internap Network Servs. Corp. |
| 2011 NY Slip Op 03216 [83 AD3d 905] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Joseph S. LaRosa, Jr., et al.,Respondents-Appellants, v Internap Network Services Corp., Appellant-Respondent,and Paetec Communications, Inc., et al., Respondents-Appellants. |
—[*1] Blau Brown & Leonard, LLC, New York, N.Y. (Shelly A. Leonard of counsel), forplaintiffs-respondents-appellants. Cohen, Kuhn & Associates, New York, N.Y. (James V. Sawicki of counsel), fordefendant-respondent-appellant Paetec Communications, Inc. Haworth Coleman & Gerstman, LLC, New York, N.Y. (Scott L. Haworth of counsel), fordefendant-respondent-appellant Sprint Communications Company, L.P. Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw [Dawn C. DeSimone], of counsel),for defendants-respondents-appellants Taconic Investment Partners, LLC, Taconic ManagementCompany, LLC, 111 Chelsea, LLC, and 111 Chelsea Commerce, L.P. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner ofcounsel), for defendant-respondent-appellant J. Calnan & Associates, Inc.
In an action to recover damages for personal injuries, etc., (1) the defendant InternapNetwork Services Corp. appeals, as limited by its notice of appeal and brief, from so much of anorder of the Supreme Court, Richmond County (McMahon, J.), dated March 9, 2010, as deniedthose branches of its motion which were for summary judgment dismissing the causes of actionto recover damages pursuant to Labor Law § 200 and based on common-law negligence,and all cross claims insofar as asserted against it, (2) the defendant Paetec Communications, Inc.,cross-appeals, as limited by its notice of appeal and brief, from so much of the same order asdenied those branches of its cross motion which were for summary judgment dismissing thecauses of action to recover damages pursuant to Labor Law § 200 and based oncommon-law negligence, and all cross claims insofar as asserted against it, (3) the plaintiffsseparately cross-appeal from so much of the same order as granted those branches of the motionof the defendant Internap Network Services Corp. and the separate cross motions of thedefendants Paetec Communications, Inc., and the defendants Taconic Investment Partners, LLC,Taconic Management Company, LLC, 111 Chelsea, LLC, and [*2]111 Chelsea Commerce, L.P., which were for summary judgmentdismissing the causes of action to recover damages pursuant to Labor Law § 240 (1) and§ 241 (6) insofar as asserted against each of the defendants and denied those branches oftheir cross motion which were for summary judgment on the issue of liability on their causes ofaction to recover damages pursuant to Labor Law § 240 (1) and § 241 (6) insofar asasserted against the defendants Taconic Investment Partners, LLC, Taconic ManagementCompany, LLC, 111 Chelsea, LLC, and 111 Chelsea Commerce, L.P., (4) the defendant SprintCommunications Company, L.P., separately cross-appeals from so much of the same order as, ineffect, denied that branch of its cross motion which was for summary judgment dismissing thecause of action to recover damages based on common-law negligence insofar as asserted againstit, and denied those branches of its cross motion which were for summary judgment on its crossclaims for contractual indemnification against the defendants Internap Network Services Corp.,Taconic Investment Partners, LLC, Taconic Management Company, LLC, 111 Chelsea, LLC,and 111 Chelsea Commerce, L.P., and to set the matter down for a hearing on the amount of fees,costs, and disbursements payable to it, (5) the defendants Taconic Investment Partners, LLC,Taconic Management Company, LLC, 111 Chelsea, LLC, and 111 Chelsea Commerce, L.P.,separately cross-appeal, as limited by their notice of appeal and brief, from so much of the sameorder as denied those branches of their cross motion which were for summary judgmentdismissing the causes of action to recover damages pursuant to Labor Law § 200 and basedon common-law negligence and all cross claims insofar as asserted against them, and forsummary judgment on the cross claims asserted by the defendant 111 Chelsea, LLC, forcontractual indemnification against the defendants Sprint Communications, L.P., and PaetecCommunications, Inc., and to set the matter down for a hearing on the amount of attorney's fees,costs, and disbursements payable to the defendants Taconic Investment Partners, LLC, TaconicManagement Company, LLC, 111 Chelsea, LLC, and 111 Chelsea Commerce, L.P., and (6) thedefendant J. Calnan & Associates separately cross-appeals from so much of the same order asdenied those branches of its cross motion which were for summary judgment dismissing thecauses of action to recover damages pursuant to Labor Law § 200 and based oncommon-law negligence and all cross claims insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthose branches of the motion of the defendant Internap Network Services Corp. which were forsummary judgment dismissing the causes of action to recover damages pursuant to Labor Law§ 200 and based on common-law negligence, and all cross claims insofar as assertedagainst it, and substituting thereof a provision granting those branches of the motion, (2) bydeleting the provision thereof denying those branches of the cross motion of the defendant PaetecCommunications, Inc., which were for summary judgment dismissing the causes of action torecover damages pursuant to Labor Law § 200 and based on common-law negligenceinsofar as asserted against it, and substituting therefor a provision granting those branches of thecross motion, (3) by deleting the provision thereof, in effect, denying that branch of the crossmotion of the defendant Sprint Communications Company, L.P., which was for summaryjudgment dismissing the cause of action to recover damages based on common-law negligenceinsofar as asserted against it, and substituting therefor a provision granting that branch of thecross motion, (4) by deleting the provisions thereof denying those branches of the cross motionof the defendants Taconic Investment Partners, LLC, Taconic Management Company, LLC, 111Chelsea, LLC, and 111 Chelsea Commerce, L.P., which were for summary judgment dismissingthe causes of action to recover damages pursuant to Labor Law § 200 and based oncommon-law negligence insofar as asserted against them, and on the cross claims asserted by thedefendant 111 Chelsea, LLC, for contractual indemnification against the defendants SprintCommunications, L.P., and Paetec Communications, Inc., and to set the matter down for ahearing on the amount of attorney's fees, costs, and disbursements payable to the defendant 111Chelsea, LLC, and substituting therefor provisions granting those branches of the cross motion,and (5) by deleting the provision thereof denying those branches of the cross motion of thedefendant J. Calnan & Associates, which were for summary judgment dismissing the causes ofaction to recover damages pursuant to Labor Law § 200 and based on common-lawnegligence, and all cross claims insofar as asserted against it, and substituting therefor aprovision granting those branches of the cross motion; as so modified, the order is affirmedinsofar as appealed and cross-appealed from, with one bill of costs to the defendants appearingseparately and filing separate briefs, and the matter is remitted to the Supreme Court, RichmondCounty, for a hearing on the issue of damages on the cross claims asserted by the [*3]defendant 111 Chelsea, LLC, for contractual indemnificationagainst the defendants Sprint Communications Company, L.P., and Paetec Communications, Inc.
The plaintiff Joseph S. LaRosa, Jr. (hereinafter the plaintiff), was an employee of nonpartyPlatinum Electrical Contracting, Inc., which was an electrical subcontractor engaged by thedefendants Internap Network Services Corp. (hereinafter Internap) and Paetec Communications,Inc. (hereinafter Paetec). The plaintiff allegedly was injured when he attempted to lift a boxcontaining electrical equipment from the floor of a loading dock. The plaintiff and his wife, suingderivatively, commenced this action against, among others, Internap, Paetec, SprintCommunications Company, L.P. (hereinafter Sprint), which subleased space to Internap, 111Chelsea, LLC (hereinafter the owner), which owned the subject building, and J. Calnan &Associates, Inc., a general contractor hired by Paetec.
The Supreme Court correctly awarded summary judgment dismissing the Labor Law §240 (1) and § 241 (6) causes of action insofar as asserted against each of the defendants.The defendants made a prima facie showing that the plaintiff "was not engaged in an activityprotected under Labor Law § 240 (1) or § 241 (6)" at the time of his accident(Jock v Fien, 80 NY2d 965, 968 [1992]; see Decker v C & S Wholesale Grocers, Inc., 13 AD3d 573[2004]). His accident was not caused by a special hazard, and was not the result of anelevation-related risk (see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914,915-916 [1999]; Misseritti v Mark IV Constr. Co., 86 NY2d 487 [1995]; Whitehead v City of New York, 79AD3d 858 [2010]; Garcia vEdgewater Dev. Co., 61 AD3d 924, 925 [2009]; Kajo v E.W. Howell Co., Inc., 52 AD3d 659, 661 [2008]; Gonzalez v Turner Constr. Co., 29AD3d 630, 631 [2006]), as the plaintiff testified at his deposition that the accident occurredafter he lifted the box approximately one foot off the ground. The defendants also demonstrated,prima facie, that the plaintiff's injuries were not proximately caused by a violation of a provisionof the Industrial Code "mandating compliance with concrete specifications" (Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; see La Veglia v St. Francis Hosp., 78AD3d 1123 [2010]). In opposition to the defendants' prima facie showing, the plaintiff failedto raise a triable issue of fact.
The Supreme Court also correctly determined that each of the defendants established itsprima facie entitlement to judgment as a matter of law dismissing the causes of action to recoverdamages pursuant to Labor Law § 200 and based on common-law negligence. However,contrary to the Supreme Court's determination, the plaintiffs failed to raise a triable issue of factin opposition.
Labor Law § 200 codifies the common-law duty imposed on an owner or a generalcontractor to provide construction site workers with a safe place to work (see Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Comes v New York State Elec. & GasCorp., 82 NY2d 876 [1993]; La Veglia v St. Francis Hosp., 78 AD3d at 1123;Kajo v E.W. Howell Co., Inc., 52 AD3d at 661). Where a plaintiff's claims implicate themeans and methods of the work, an owner or a contractor will not be held liable under LaborLaw § 200 unless it had the authority to supervise or control the performance of the work.General supervisory authority to oversee the progress of the work is insufficient to imposeliability. If the challenged means and methods of the work are those of a subcontractor, and theowner or contractor exercises no supervisory control over the work, no liability attaches underLabor Law § 200 or the common law (see La Veglia v St. Francis Hosp., 78 AD3dat 1123; Ortega v Puccia, 57 AD3d54, 60-62 [2008]; Kajo v E.W. Howell Co., Inc., 52 AD3d at 661).
Here, the plaintiff's acts were under the sole control of the foreman of the subcontractor whoemployed him. None of the defendants exercised any control over the means and method bywhich the plaintiff processed the delivery of the electrical equipment. While the equipment wassubsequently to be installed by Paetec, it had no representative present at the loading dock on thedate of the plaintiff's accident, no work was being done by the subcontractor for Paetec, andPaetec had no knowledge that the equipment was going to be delivered on that date. To theextent that the Supreme Court determined that the plaintiff raised a triable issue of fact by virtueof his affidavit dated October 5, 2009, which was submitted approximately 10 months after hisdeposition, that affidavit "was carefully tailored to raise a triable issue of fact, and merely raiseda [*4]feigned factual issue which was insufficient to defeat themotion[s] for summary judgment" (Lara v Saint John's Univ., 289 AD2d 457 [2001]).Moreover, the affidavit was "designed to avoid the consequences of [the plaintiff's] depositiontestimony" (Knox v United ChristianChurch of God, Inc., 65 AD3d 1017 [2009]).
Accordingly, the Supreme Court should have granted those branches of the defendants'respective motions and cross motions which were for summary judgment dismissing the causesof action under Labor Law § 200 and common-law negligence insofar as asserted againsteach of them.
"The right to contractual indemnification depends upon the specific language of thecontract," and "[t]he promise to indemnify should not be found unless it can be clearly impliedfrom the language and purpose of the entire agreement and the surrounding circumstances" (George v Marshalls of MA, Inc., 61AD3d 925, 930 [2009]).
Since the action should have been dismissed in its entirety, the applicable provision of thelease (Section 28.1 [a]) between Sprint and the owner entitled the owner to contractualindemnification from Sprint. Sprint agreed to defend, indemnify, and save harmless the ownerfrom and against "all claims arising from any accident, injury or damage occurring outside of thePremises but anywhere within or about the Real Property, where such accident, injury or damageresults or is claimed to have resulted from the negligence . . . of [the] Tenant." Theindemnity and hold harmless agreement included "indemnity from and against any and allliability, fines, suits, demands, costs and expenses of any kind or nature (including attorneys' feesand disbursements) incurred in or in connection with any such claim or proceeding broughtthereon, and the defense thereof." As the alleged injury occurred in a common area, the loadingdock, and the plaintiffs claimed that the tenant's negligence caused the accident, the owner isentitled to indemnification from Sprint, including costs, expenses, and an attorney's fee. For thesame reason, the owner is entitled to indemnification from Paetec, including costs, expenses, andan attorney's fee, based upon a virtually identical indemnification clause in the lease between theowner and Paetec. Further, since the provision of the lease between Sprint and the owner withrespect to contractual indemnification in favor of Sprint applies only when Sprint is not liable toindemnify the owner pursuant to Section 28.1 (a), Sprint has no right to indemnification from theowner.
Additionally, the applicable provision of the sublease between Sprint and Internap calls forindemnification by Internap, but only with respect to claims for bodily injury arising out of theuse of the subleased premises or the conduct of the subtenant's business, or from any act by thesubtenant or its contractors in or about the subleased premises. Here, the plaintiff's injury did notoccur in the premises subleased to Internap. Nor did it arise out of the conduct of Internap'sbusiness, since the delivery of the electrical equipment was for Paetac. Therefore, Sprint is notentitled to indemnification from Internap.
Accordingly, the owner was entitled to summary judgment on its cross claim for contractualindemnification against Sprint and Paetec, but that branch of Sprint's cross motion which was forsummary judgment on its cross claim for contractual indemnification against Internap and theowner was properly denied. The matter must be remitted to the Supreme Court, RichmondCounty, for a hearing on the issue of damages on the cross claims for contractual indemnificationasserted by the owner against Sprint and Paetec.
The parties' remaining contentions are without merit. Angiolillo, J.P., Florio, Leventhal andMiller, JJ., concur. [Prior Case History: 2010 NY Slip Op 30507(U).]