| Gonzalez v TJM Constr. Corp. |
| 2011 NY Slip Op 06246 [87 AD3d 610] |
| August 16, 2011 |
| Appellate Division, Second Department |
| Gilbert Gonzalez, Appellant, v TJM Construction Corp. etal., Respondents, et al., Defendant. (And a Third-Party Action.) |
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Newman Myers Kreines Gross Harris, P.C., New York, N.Y. (Olivia M. Gross and AdrienneYaron of counsel), for respondent TJM Construction Corp. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Mario Castellitto ofcounsel), for respondent PMS Construction Management.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief and by a letter dated April 5, 2011, from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated December 17, 2009, as denied those branches of his motion whichwere for summary judgment on the issue of liability against the defendants TJM ConstructionCorp. and PMS Construction Management Corp. on the Labor Law § 240 (1) cause ofaction, and granted those branches of the cross motion of the defendant PMS ConstructionManagement Corp. which were for summary judgment dismissing the Labor Law § 240(1) cause of action and so much of the Labor Law § 241 (6) cause of action as waspredicated on an alleged violation of 12 NYCRR 23-1.7 (a) (1) insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the cross motion of the defendant PMS Construction Management Corp. whichwere for summary judgment dismissing the Labor Law § 240 (1) cause of action and somuch of the Labor Law § 241 (6) cause of action as was predicated on an alleged violationof 12 NYCRR 23-1.7 (a) (1) insofar as asserted against it, and substituting therefor a provisiondenying those branches of the cross motion; as so modified, the order is affirmed insofar asappealed from, with one bill of costs to the defendant TJM Construction Corp., payable by theplaintiff.
The plaintiff was a mason employed by subcontractor Construction Services U.S.A., Inc.(hereinafter Construction), on a project to renovate a building owned by the City of New Yorkthat had previously been used as a church, so that it could be used as a performing arts center.PMS Construction Management Corp. (hereinafter PMS) was the construction manager on theproject and TJM Construction Corp. (hereinafter TJM) was the general contractor. Constructionwas hired by TJM to restore and reinforce the faÇade of the building, which included theremoval and replacement of loose bricks from the building's faÇade. The plaintiff wasinside the building on the ground floor [*2]next to a window thathad been removed, talking to his foreman, when, according to the plaintiff, a brick fell from "outof nowhere" and struck him, causing injuries.
The Supreme Court properly denied that branch of the plaintiff's motion which was forsummary judgment on the issue of liability against TJM and PMS on the Labor Law § 240(1) cause of action. The plaintiff failed to eliminate all questions of fact as to whether the brickthat struck him was an object that required securing for the purposes of the undertaking beingperformed (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]; Marin v AP-Amsterdam 1661 ParkLLC, 60 AD3d 824, 825-826 [2009]; cf. Outar v City of New York, 5 NY3d 731, 732 [2005]; Portillo v Roby Anne Dev., LLC, 32AD3d 421, 421-422 [2006]).
The Supreme Court also should have denied those branches of PMS's cross motion whichwere for summary judgment dismissing the Labor Law § 240 (1) cause of action and somuch of the Labor Law § 241 (6) cause of action as was predicated on an alleged violationof 12 NYCRR 23-1.7 (a) (1) insofar as asserted against it. PMS failed to establish the absence oftriable issues of fact regarding whether it had sufficient authority to supervise and control theplaintiff's work such that it could be liable pursuant to Labor Law § 240 (1) and §241 (6) as a statutory agent of the owner or general contractor (see Walls v Turner Constr. Co., 4NY3d 861, 863-864 [2005]; Russin v Louis N. Picciano & Son, 54 NY2d 311, 318[1981]; Tomyuk v Junefield Assoc.,57 AD3d 518, 520 [2008]). PMS also failed to establish the absence of issues of factregarding its contention that the area in which the plaintiff was standing when he was struck wasnot "normally exposed to falling material or objects," rendering 12 NYCRR 23-1.7 (a) (1)inapplicable (Amerson v Melito Constr.Corp., 45 AD3d 708, 709 [2007] [internal quotation marks omitted]; see Zervos v City of New York, 8AD3d 477, 479-480 [2004]; Belcastro v Hewlett-Woodmere Union Free School Dist.No. 14, 286 AD2d 744, 745-746 [2001]). Finally, PMS failed to eliminate all triable issuesof fact regarding its contention that the brick that struck the plaintiff was not an object thatrequired securing for the purposes of the undertaking pursuant to Labor Law § 240 (1)(see Outar v City of New York, 5 NY3d at 732; Portillo v Roby Anne Dev.,LLC., 32 AD3d at 421-422; Bornschein v Shuman, 7 AD3d 476, 478 [2004]; cf. Narducci vManhasset Bay Assoc., 96 NY2d at 268).
We decline PMS's request to search the record and award it summary judgment on its crossclaim against TJM for contractual indemnification. Skelos, J.P., Eng, Belen and Lott, JJ.,concur.
Motion by the respondent TJM Construction Corp. on an appeal from an order of theSupreme Court, Kings County, dated December 17, 2009, inter alia, to strike the entire or statedportions of the brief of the respondent PMS Construction Management Corp. By decision andorder on motion dated September 3, 2010, the motion was held in abeyance and referred to thepanel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and theargument of the appeal, it is[*3]
Ordered that the motion is denied. Skelos, J.P., Eng,Belen and Lott, JJ., concur.