| Hart v Commack Hotel, LLC |
| 2011 NY Slip Op 05668 [85 AD3d 1117] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Thomas Hart, Appellant-Respondent, v Commack Hotel,LLC, et al., Defendants/Third-Party Plaintiffs-Respondents-Appellants, et al., Defendant. HartRoofing & Waterproofing, Inc., Third-Party Defendant-Respondent. |
—[*1] Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (David A. LoRe of counsel), fordefendants/third-party plaintiffs-respondents-appellants. Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for third-partydefendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County, (Rebolini, J.), dated June22, 2010, as denied his motion for summary judgment on the issue of liability on his cause ofaction alleging a violation of Labor Law § 240 (1) and granted those branches of the crossmotion of the defendants/third-party plaintiffs, Commack Hotel, LLC, and HMB ManagementCo., which were for summary judgment dismissing the causes of action alleging common-lawnegligence and violations of Labor Law §§ 200 and 241 (6), and thedefendants/third-party plaintiffs, Commack Hotel, LLC, and HMB Management Co.,cross-appeal, as limited by their brief, from so much of the same order as denied that branch oftheir cross motion which was for summary judgment dismissing the cause of action alleging aviolation of Labor Law § 240 (1) and denied that branch of their cross motion which wasfor summary judgment on the third-party cause of action for conditional common-lawindemnification against the third-party defendant, Hart Roofing & Waterproofing, Inc.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendants/third-party plaintiffs' which was for summary judgmenton the cause of action for conditional common-law indemnification and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asappealed and cross-appealed from, with one bill of costs payable by the third-party defendant tothe defendants/third-party plaintiffs.
While installing a new roof at a hotel owned and operated by the defendants/third-partyplaintiffs, Commack Hotel, LLC, and HMB Management Co. (hereinafter together the owners),the plaintiff allegedly was injured when he slipped and fell approximately 22 feet from the roofafter [*2]kneeling on an unsupported portion of roofing material.The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on theissue of liability pursuant to Labor Law § 240 (1) because his own submissions showed theexistence of triable issues of fact as to whether adequate safety devices were readily availableand, if so, whether he was aware that he should use them while working on the roof (see Bergv Albany Ladder Co., Inc.,10 NY3d 902, 904 [2008]). Accordingly, the Supreme Courtproperly denied the plaintiff's motion for summary judgment on the issue of liability on the causeof action alleging a violation of Labor Law § 240 (1), and that branch of the owners' crossmotion which was for summary judgment dismissing that cause of action.
"Labor Law § 200 is a codification of the common-law duty imposed upon an owneror general contractor to maintain a safe construction site" (McKee v Great Atl. & Pac. Tea Co., 73 AD3d 872, 873 [2010]).Where, as here, "a claim arises out of alleged defects or dangers in the methods or materials ofthe work, recovery against the owner or general contractor cannot be had under Labor Law§ 200 unless it is shown that the party to be charged had the authority to supervise orcontrol the performance of the work" (id. at 874; see Herrel v West, 82 AD3d 933, 933 [2011]). Here, the ownersestablished their prima facie entitlement to judgment as a matter of law by demonstrating thatthey did not have the authority to supervise or control the roofing work performed by theplaintiff's employer, Hart Roofing & Waterproofing, Inc. (hereinafter Hart Roofing), which gaverise to the injury (see Lombardi v Stout, 80 NY2d 290, 294-295 [1992]; McKee vGreat Atl. & Pac. Tea Co., 73 AD3d at 874; Chowdhury v Rodriguez, 57 AD3d 121, 127 [2008]). In opposition,the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properlygranted that branch of the owners' cross motion which was for summary judgment dismissing thecauses of action alleging common-law negligence and a violation of Labor Law § 200. TheSupreme Court also properly granted that branch of the owners' cross motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) because the plaintiff failed to identify a violation of any specific provision of the New YorkState Industrial Code in his pleadings, bill of particulars, or the underlying motion papers (seeOwen v Commercial Sites, 284 AD2d 315 [2001]).
However, the Supreme Court should have granted that branch of the owners' cross motionwhich was for summary judgment on their cause of action for conditional common-lawindemnification. In order to establish a claim for common-law indemnification, a party must"prove not only that [it was] not negligent, but also that the proposed indemnitor. . . was responsible for negligence that contributed to the accident or, in theabsence of any negligence, had the authority to direct, supervise, and control the work giving riseto the injury" (Benedetto v CarreraRealty Corp., 32 AD3d 874, 875 [2006]). Here, the owners were not negligent, and anyliability on their part would be purely statutory and vicarious (id.; see Perri v Gilbert Johnson Enters.,Ltd., 14 AD3d 681, 684-685 [2005]). The owners also demonstrated that Hart Roofingwas hired to replace the roof at their hotel and it had the authority to direct, supervise, andcontrol the means and methods of the roofing work. In opposition, Hart Roofing failed to raise atriable issue of fact. Rivera, J.P., Florio, Austin and Cohen, JJ., concur.