| Posa v Copiague Pub. School Dist. |
| 2011 NY Slip Op 03826 [84 AD3d 770] |
| May 3, 2011 |
| Appellate Division, Second Department |
| John Posa et al., Respondents, v Copiague Public SchoolDistrict et al., Respondents, and Health and Education Equipment Corp., Appellant, et al.,Defendant. (And a Third-Party Title.) |
—[*1] Gallo, Vitucci, Klar, New York, N.Y. (Yolanda L. Ayala of counsel), fordefendants-respondents Copiague Public School District and Irwin Contracting of Long Island,Inc. Greenfield & Ruhl, Mineola, N.Y. (Brian J. Greenfield and Scott L. Mathias of counsel), fordefendant-respondent TKO Contracting Corp.
In an action to recover damages for personal injuries, etc., the defendant Health andEducation Equipment Corp. appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Pines, J.), dated January 7, 2010, as denied those branches of itsmotion which were for summary judgment dismissing the causes of action to recover damagesfor violations of Labor Law § 200 and common-law negligence insofar as asserted againstit and on its cross claim for common-law indemnification against the defendant TKO ContractingCorp., and granted that branch of the cross motion of the defendants Copiague Public SchoolDistrict and Irwin Contracting of Long Island, Inc., which was for summary judgment on theircross claim for contractual indemnification 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 Health and Education Equipment Corp. whichwere for summary judgment dismissing the causes of action to recover damages for violations ofLabor Law § 200 and common-law negligence insofar as asserted against it, andsubstituting therefor a provision granting those branches of the motion, and (2) by deleting theprovision thereof granting that branch of the cross motion of the defendants Copiague PublicSchool District and Irwin Contracting of Long Island, Inc., which was for summary judgment ontheir cross claim for contractual indemnification asserted against the defendant Health andEducation Equipment Corp., and substituting therefor a provision denying that branch of thecross motion; as so modified, the order is affirmed insofar as appealed from, with one bill ofcosts to the defendant Health and Education Equipment Corp., payable by the defendantsCopiague Public School District and Irwin Contracting of Long Island, Inc., and the plaintiffs,and one bill of costs to the defendant TKO Contracting Corp., payable by the defendant Healthand Education Equipment Corp.
The plaintiff John Posa (hereinafter the plaintiff), an employee of a nonparty company which[*2]installed bathroom partitions, was injured while working atCopiague High School (hereinafter the school) when two tabletops that were to be installed in theschool's science laboratories fell on his foot. At the time of the accident, the tabletops had beenstored on their sides in the school's hallway, leaning against the hallway wall. The defendantIrwin Contracting of Long Island, Inc. (hereinafter Irwin), was the general contractor retained bythe defendant Copiague Public School District (hereinafter the School District) to renovateportions of the school at the time of the accident. The defendant Health and EducationEquipment Corp. (hereinafter H&E) entered into a subcontract with Irwin to provide and installfurniture and fixtures in the laboratories. H&E, in turn, subcontracted to the defendant TKOContracting Corp. (hereinafter TKO) the responsibility to unload the furniture and fixtures, storethose items, and install the furniture and fixtures in the science laboratories.
The Supreme Court should have granted that branch of H&E's motion which was forsummary judgment dismissing the cause of action to recover damages for a violation of LaborLaw § 200 insofar as asserted against it. H&E established its prima facie entitlement tojudgment as a matter of law with respect to that cause of action by demonstrating that it was asubcontractor who did not control the work that allegedly caused the plaintiff's injury (seeRussin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]; Tomyuk v Junefield Assoc., 57 AD3d518, 521 [2008]; Kelarakos vMassapequa Water Dist., 38 AD3d 717, 718 [2007]; Zervos v City of New York, 8 AD3d 477, 481 [2004]). Inopposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
In addition, the Supreme Court should have granted that branch of H&E's motion which wasfor summary judgment dismissing the cause of action alleging common-law negligence insofar asasserted against it. H&E made a prima facie showing that its employees did not create anunreasonable risk of harm that caused or contributed to the accident which injured the plaintiff(see Tomyuk v Junefield Assoc., 57 AD3d at 521-522; cf. Erickson v Cross Ready Mix, Inc.,75 AD3d 519, 523 [2010]; Kelarakos v Massapequa Water Dist., 38 AD3d at 719;Marano v Commander Elec., Inc.,12 AD3d 571, 572-573 [2004]), and the plaintiffs failed to raise a triable issue of fact inopposition (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To theextent the cause of action alleging common-law negligence insofar as asserted against H&E waspredicated upon the alleged negligence of TKO, H&E's subcontractor, "[a]s a general rule, anemployer who hires an independent contractor is not liable for the negligent acts of theindependent contractor" (Steel v City of New York, 271 AD2d 435, 436 [2000]; seeBackiel v Citibank, 299 AD2d 504, 505 [2002]; Mercado v Slope Assoc., 246 AD2d581 [1998]). Here, the plaintiffs' opposition papers failed to raise a triable issue of fact as towhether H&E exercised any control over the method or manner in which TKO performed itsduties, and were thus insufficient to raise a triable issue of fact as to whether H&E supervisedTKO for vicarious liability purposes (see Laecca v New York Univ., 7 AD3d 415, 416 [2004];Mercado v Slope Assoc., 246 AD2d at 581; Gross v City of New York, 207AD2d 525, 526 [1994]).
The Supreme Court should have denied that branch of the cross motion of the School Districtand Irwin which was for summary judgment on their cross claim for contractual indemnificationasserted against H&E. "The right to contractual indemnification depends upon the specificlanguage of the contract" (George vMarshalls of MA, Inc., 61 AD3d 925, 930 [2009]; see Martinez v City of New York, 73 AD3d 993, 998-999 [2010])."[A] party seeking contractual indemnification must prove itself free from negligence, because tothe extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v GealtecRemodeling Corp., 58 AD3d 660, 662 [2009]; see Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 808[2009]).
Here, the indemnification provisions of Irwin's purchase order and subcontract agreementwith H&E, both of which were proffered in support of the cross motion, required H&E toindemnify the School District and Irwin for claims arising out of the work of H&E or itssubcontractors. However, the School District and Irwin also proffered the deposition testimony ofrepresentatives of H&E and TKO, both of whom testified that it was a customary practice totemporarily store tabletops by leaning them against a wall (see generally Trimarco vKlein, 56 NY2d 98, 105-106 [1982]). Moreover, the subcontract agreement between Irwinand H&E required Irwin to provide "suitable areas for storage of the Subcontractor's materialsand equipment during the course of the Work," and the deposition testimony of TKO'srepresentative presented evidence that employees of the School District and/or Irwin may havedirected TKO to store the tabletops in the area where the subject accident occurred. Accordingly,[*3]because the School District and Irwin failed to establish,prima facie, the absence of triable issues of fact as to whose negligence, if any, caused theaccident, the Supreme Court should not have granted that branch of their cross motion which wasfor summary judgment on their cross claim for contractual indemnification against H&E (seeBellefleur v Newark Beth Israel Med. Ctr., 66 AD3d at 809; George v Marshalls of MA,Inc., 61 AD3d at 930), regardless of the sufficiency of the opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
We affirm the denial of that branch of H&E's motion which was for summary judgment onits cross claim for common-law indemnification asserted against TKO, but on a ground differentfrom that relied upon by the Supreme Court. In order to make a prima facie showing of itsentitlement to judgment as a matter of law on this cross claim, H&E was required to demonstrate"not only that [it was] not negligent, but also that the proposed indemnitor, [TKO], wasresponsible for negligence that contributed to the accident or, in the absence of any negligence,had the authority to direct, supervise, and control the work giving rise to the injury" (Benedetto v Carrera Realty Corp., 32AD3d 874, 875 [2006]; seeMendelsohn v Goodman, 67 AD3d 753, 754 [2009]). In support of its motion, H&Erelied upon the same deposition testimony and contracts proffered by the School District andIrwin in support of their cross motion. Contrary to the Supreme Court's determination, thesesubmissions established, prima facie, that H&E was not negligent. However, they failed todemonstrate an absence of triable issues of fact as to whether TKO was either negligent or hadthe authority to direct, supervise, or control the work giving rise to the injury (seeMendelsohn v Goodman, 67 AD3d at 754; DiPasquale v M.J. Ogiony Bldrs., Inc., 60 AD3d 1338, 1339-1340[2009]). Accordingly, the Supreme Court properly denied that branch of H&E's motion whichwas for summary judgment on its cross claim for common-law indemnification asserted againstTKO, without regard to the sufficiency of the opposition papers (see Alvarez v ProspectHosp., 68 NY2d at 324).
The parties' remaining contentions are either not properly before this Court or without merit.Covello, J.P., Dickerson, Eng and Sgroi, JJ., concur.