| Ulrich v Motor Parkway Props., LLC |
| 2011 NY Slip Op 04452 [84 AD3d 1221] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Joseph Ulrich et al., Respondents, v Motor ParkwayProperties, LLC, et al., Appellants, and Augusiewicz Excavating Corp., Respondent, et al.,Defendant. |
—[*1] Bello & Larkin, Hauppauge, N.Y. (Robert X. Larkin of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants Motor ParkwayProperties, LLC, and Mara Brothers Construction Co. appeal, as limited by their brief, from somuch of an order of the Supreme Court, Suffolk County (Emerson, J.), dated December 22, 2009,as denied those branches of their motion which were for summary judgment dismissing the LaborLaw § 200 and common-law negligence causes of action insofar as asserted against MaraBrothers Construction Co., for summary judgment dismissing the Labor Law § 241 (6)cause of action insofar as asserted against Motor Parkway Properties, LLC, and Mara BrothersConstruction Co., and for summary judgment on the cross claim of Mara Brothers ConstructionCo. against Augusiewicz Excavating Corp. for contractual indemnification.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the appellants payable by the plaintiffs and the defendant Augusiewicz Excavating Corp.,appearing separately and filing separate briefs, that branch of the appellants' motion which wasfor summary judgment dismissing the Labor Law § 241 (6) cause of action insofar asasserted against them is granted, that branch of their motion which was for summary judgmentdismissing the Labor Law § 200 and common-law negligence causes of action insofar asasserted against the appellant Mara Brothers Construction Co. is granted, and that branch of theirmotion which was for summary judgment on the cross claim of the appellant Mara BrothersConstruction Co. against the defendant Augusiewicz Excavating Corp. for contractualindemnification is granted.
The plaintiff Joseph Ulrich, a laborer for a masonry company, allegedly was injured whileworking at an excavation site. Construction of a new building was underway, and the excavationwas complete. The plaintiff was bringing mortar from a mortar box to the bricklayer using ashovel. To reach the bricklayer, he had to walk down a slope of dirt, debris, and rock that hadbeen created by the excavator, Augusiewicz Excavating Corp. (hereinafter Augusiewicz). Theplaintiff testified at his deposition that the hill was about 6 feet high and about 10 feet long. Theplaintiff testified that when he took the first [*2]step down thehill, the ground gave way, causing him to fall forward.
Eugene Augusiewicz, the principal of Augusiewicz, testified at his deposition that theexcavation was 10 feet at its deepest point, and that the slope of the hill at the excavation site was"one on one." This meant that where the excavation was 10 feet deep, the slope at that point wasten feet out from the foundation of the building. He testified that the angle of the slope was inaccordance with OSHA guidelines. There was no call for shoring in the site plans, and no shoringwas used.
The Supreme Court erred in denying that branch of the appellants' motion which was forsummary judgment dismissing the Labor Law § 200 cause of action insofar as assertedagainst Mara Brothers Construction Co. (hereinafter Mara Brothers), the general contractor at thework site. Mara Brothers established its entitlement to judgment as a matter of law by submittingdeposition testimony which established that no defective or dangerous condition existed at thejob site (see Bishop v Marsh, 59 AD3d 483 [2009]; Jackson v City of New York,55 AD3d 546 [2008]; Brooks v Bostrom, 18 AD3d 594 [2005]; Hofmann v Toys "R"Us, NY Ltd. Partnership, 272 AD2d 296 [2000]). The plaintiffs failed to raise a triable issueof fact in opposition. There is no evidence in the record to contradict the testimony of EugeneAugusiewicz that the measurements of the slope were within OSHA guidelines and theguidelines set forth in table I of 12 NYCRR 23-4.2 and that the excavation did not requiresheeting or shoring, or to otherwise indicate that the angle of the slope or a lack of sheeting orshoring constituted a dangerous condition. The plaintiff's own testimony indicates that the angleof the slope was within the guidelines set forth in table I of 12 NYCRR 23-4.2.
Furthermore, Mara Brothers established prima facie that the slope was an open and obviouscondition that was readily observable by the reasonable use of one's senses, and was notinherently dangerous (see Thomas v Pleasantville Union Free School Dist., 79 AD3d 853[2010], lv denied 16 NY3d 708 [2011]; Dinallo v DAL Elec., 43 AD3d 981[2007]; Sun Ho Chung v Jeong Sook Joh, 29 AD3d 677 [2006]).
The Supreme Court also erred in denying that branch of the appellants' motion which was forsummary judgment dismissing the Labor Law § 241 (6) cause of action insofar as assertedagainst them. The appellants established their prima facie entitlement to judgment as a matter oflaw on this cause of action. To establish liability under Labor Law § 241 (6), a plaintiffmust demonstrate that his injuries were proximately caused by a violation of an Industrial Codeprovision mandating compliance with concrete specifications (see La Veglia v St. FrancisHosp., 78 AD3d 1123 [2010]; Pereira v Quogue Field Club of Quogue, Long Is., 71AD3d 1104 [2010]).
The plaintiffs alleged violations of 12 NYCRR 23-1.5 (a); 23-4.1 (a) and (b) and 23-4.2 (a),(b), (d), (e) and (f). 12 NYCRR 23-1.5 (a) merely sets forth a general standard of care foremployers, and thus cannot serve as a predicate for liability pursuant to Labor Law § 241(6) (see Pereira v Quogue Field Club of Quogue, Long Is., 71 AD3d 1104 [2010];Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311 [1997]; Gordineer vCounty of Orange, 205 AD2d 584 [1994]). 12 NYCRR 23-4.2 (d) and (e) are inapplicable tothe facts here. As for 12 NYCRR 23-4.1 (a) and (b) and 23-4.2 (a), (b) and (f), the appellantsestablished prima facie that they did not violate those provisions. The plaintiffs failed to raise atriable issue of fact in opposition.
Finally, the Supreme Court should have granted that branch of the appellants' motion whichwas for summary judgment on Mara Brothers' cross claim against Augusiewicz for contractualindemnification. The indemnification provision in the contract between Mara Brothers andAugusiewicz provides for indemnification when the claim arises out of Augusiewicz's work,even if Augusiewicz has not been negligent. Therefore, although there is no evidence ofnegligence on Augusiewicz's part, the indemnification agreement requires Augusiewicz toindemnify Mara Brothers (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178[1990]; Tobio v Boston Props., Inc., 54 AD3d 1022 [2008]; Walsh v MorseDiesel, 143 AD2d 653 [1988]). The contractual indemnification provision does not violateGeneral Obligations Law § 5-322.1, as it states that Augusiewicz is not required toindemnify Mara Brothers for Mara Brothers' own negligence. Skelos, J.P., Leventhal, Sgroi andMiller, JJ., concur.