| Jamindar v Uniondale Union Free School Dist. |
| 2011 NY Slip Op 08908 [90 AD3d 612] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Jigar Jamindar, Appellant-Respondent, v Uniondale Union FreeSchool District et al., Defendants/Third-Party Plaintiffs-Respondents-Appellants, and IrwinContracting, Inc., et al., Respondents-Appellants. Herrick's Mechanical Corporation, Third-PartyDefendant-Respondent-Appellant. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Kathleen A. Foley of counsel), for defendants/third-party plaintiffs-respondents-appellants. Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), fordefendant-respondent-appellant Irwin Contracting, Inc. Tromello, McDonnell & Kehor, Melville, N.Y. (Kevin P. Slattery of counsel), fordefendant-respondent-appellant Conor Construction Consultants. Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan of counsel), fordefendant-respondent-appellant Northgate Electrical. Churbuck, Calabria, Jones & Materazo, P.C., Hicksville, N.Y. (George Jones and NicholasP. Calabria of counsel), for third-party defendant-respondent-appellant.
In an action to recover damages for personal injuries, (1) the plaintiff appeals from so muchof an order of the Supreme Court, Nassau County (Sher, J.), dated August 10, 2010, as denied hismotion for summary judgment on the cause of action alleging violations of Labor Law §240 (1) insofar as asserted against the defendants/third-party plaintiffs, Uniondale Union FreeSchool District and Uniondale High School, and the defendant Conor Construction Consultants,(2) the defendants/third-party plaintiffs, Uniondale Union Free School District and UniondaleHigh School, cross-appeal, as limited by their brief, from so much of the same order as deniedtheir cross motion for summary judgment dismissing the complaint insofar as asserted againstthem or, alternatively, for conditional summary judgment on their cross claim for contractualindemnification against the defendant Northgate Electrical and their third-party causes of actionfor contractual indemnification against the third-party defendant, Herrick's MechanicalCorporation, (3) the defendant Irwin Contracting, Inc., separately cross-appeals, as limited by itsbrief, from so much of [*2]the same order as denied its crossmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it, (4) the defendant Conor Construction Consultants separately cross-appeals from somuch of the same order as denied those branches of its cross motion which were for summaryjudgment dismissing the complaint insofar as asserted against it or, in the alternative, forconditional summary judgment on its cross claims for contractual and common-lawindemnification against the defendant Northgate Electrical and the third-party defendant,Herrick's Mechanical Corporation, (5) the defendant Northgate Electrical separatelycross-appeals from so much of the same order as denied its cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and (6) the third-partydefendant, Herrick's Mechanical Corporation, separately cross-appeals, as limited by its brief,from so much of the same order as denied those branches of its cross motion which were forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), the third-party complaint, and all cross claims and counterclaims alleging common-lawindemnification, contribution, and contractual indemnification insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the plaintiff's motion which was for summary judgment on the cause of actionalleging a violation of Labor Law § 240 (1) insofar as asserted against thedefendants/third-party plaintiffs, Uniondale Union Free School District and Uniondale HighSchool, and substituting therefor a provision granting that branch of the plaintiff's motion, (2) bydeleting the provision thereof denying that branch of the cross motion of thedefendants/third-party plaintiffs, Uniondale Union Free School District and Uniondale HighSchool, which was for conditional summary judgment on their cross claim for contractualindemnification against the defendant Northgate Electrical and their third-party causes of actionfor contractual indemnification against the third-party defendant, Herrick's MechanicalCorporation, and substituting therefor a provision granting that branch of the cross motion, (3) bydeleting the provision thereof denying the cross motion of the defendant Irwin Contracting, Inc.,for summary judgment dismissing the complaint and all cross claims insofar as asserted againstit, and substituting therefor a provision granting that cross motion, (4) by deleting the provisionthereof denying that branch of the cross motion of the defendant Conor Construction Consultantswhich was for conditional summary judgment on its cross claims for common-lawindemnification against the defendant Northgate Electrical, and substituting therefor a provisiongranting that branch of the cross motion, (5) by deleting the provision thereof denying thatbranch of the cross motion of the defendant Northgate Electrical which was for summaryjudgment dismissing the cause of action alleging violations of Labor Law § 240 (1) and§ 241 (6) insofar as asserted against it, and substituting therefor a provision granting thatbranch of the cross motion, and (6) by deleting the provision thereof denying those branches ofthe cross motion of the third-party defendant, Herrick's Mechanical Corporation, which were forsummary judgment dismissing all cross claims, counterclaims, and third-party causes of actionfor common-law contribution and indemnification, as well as the cross claim by the defendantConor Construction Consultants for contractual indemnification, insofar as asserted against it,and substituting therefor a provision granting those branches of the cross motion; as so modified,the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to thedefendant Irwin Contracting, Inc., payable by the plaintiff, the defendants, thedefendants/third-party plaintiffs, and the third-party defendant, appearing separately and filingseparate briefs.
The plaintiff commenced this action to recover damages pursuant to Labor Law§§ 200, 240 (1) and § 241 (6), and for common-law negligence, for personalinjuries he allegedly sustained in August 2007 when he fell approximately 25 feet from the top ofa scissor lift owned by the defendant Northgate Electrical (hereinafter Northgate), whileperforming duct work demolition for his employer, the third-party defendant Herrick'sMechanical Corporation (hereinafter Herrick's). The plaintiff was performing the work at anauditorium of the defendants/third-party plaintiffs Uniondale Union Free School District andUniondale High School (hereinafter together Uniondale). The plaintiff alleged that, while he wasremoving air conditioning ducts, a portion of an air duct being removed struck the scissor lift,causing the scissor lift to fall over. In addition to Northgate, which was hired by Uniondale toperform electrical work, and Herrick's, which was hired by Uniondale to perform the duct workdemolition, the defendants Irwin Contracting (hereinafter Irwin) and Conor ConstructionConsultants (hereinafter Conor), were also hired by Uniondale to work on [*3]the project in various capacities. The plaintiff alleged, inter alia,that the scissor lift was defective and not suitable to protect him from elevation related hazards.
The Supreme Court erred in denying that branch of the plaintiff's motion which was forsummary judgment on the cause of action alleging a violation of Labor Law § 240 (1)insofar as asserted against the property owner, Uniondale. "Labor Law § 240 (1) providesexceptional protection for workers against the 'special hazards' that arise when either the worksite itself is elevated or is positioned below the level where materials or load are being hoisted orsecured" (Gonzalez v Turner Constr.Co., 29 AD3d 630, 631 [2006]). The failure of an owner such as Uniondale "to furnishor erect suitable devices to protect workers when work is being performed" results in absoluteliability against that owner under Labor Law § 240 (1) (Lombardi v Stout, 80NY2d 290, 295 [1992]; see Pineda v 79 Barrow St. Owners Corp., 297 AD2d 634[2002]). Here, in response to the plaintiff's prima facie showing of entitlement to judgment as amatter of law on the Labor Law § 240 (1) cause of action against Uniondale (see Thome v Benchmark Main Tr. Assoc.,LLC, 86 AD3d 938 [2011]), Uniondale failed to raise a triable issue of fact. Contrary toUniondale's contention, as well as similar contentions raised by the other defendants, this is not acase where it can be said that the plaintiff's own conduct was the sole proximate cause of theaccident and his injuries since, inter alia, at the time of the accident, he was using the Northgatescissor lift at the direction of his foreman (see Harris v City of New York, 83 AD3d 104, 110 [2011]; Pichardo v Aurora Contrs., Inc., 29AD3d 879 [2006]). Accordingly, the Supreme Court should have granted that branch of theplaintiff's motion which was for summary judgment on the cause of action alleging a violation ofLabor Law § 240 (1) against Uniondale.
Conor made a prima facie showing of entitlement to judgment as a matter of law on its crossclaim for common-law indemnification against Northgate, demonstrating that any liability to theplaintiff on its part would be purely statutory and vicarious to Northgate's direct liability. Inopposition, Northgate failed to raise a triable issue of fact. Accordingly, the Supreme Courtshould have granted that branch of Conor's cross motion which was for conditional summaryjudgment on its common-law indemnification cross claims against Northgate (see Hart v Commack Hotel, LLC, 85AD3d 1117 [2011]).
The Supreme Court should have granted that branch of Herrick's cross motion which was forsummary judgment dismissing all common-law contribution and indemnification claims insofaras asserted against it. Herrick's made a prima face showing of entitlement to judgment as a matterof law by submitting evidence demonstrating that the plaintiff did not suffer a grave injury underthe Workers' Compensation Law, and no triable issue of fact was raised in opposition (see Miranda v Norstar Bldg. Corp., 79AD3d 42 [2010]; Mikulski v AdamR. West, Inc., 78 AD3d 910, 911 [2010]; Bradt v Lustig, 280 AD2d 739[2001]). Further, that branch of Herrick's cross motion which was for summary judgmentdismissing the cross claim for contractual indemnification asserted against it by Conor alsoshould have been granted, since Herrick's established the absence of a contractual agreement toindemnify Conor in this action (seeAraujo v City of New York, 84 AD3d 993, 994 [2011]), and no triable issue of fact wasraised in opposition.
Irwin made a prima facie showing of entitlement to judgment as a matter of law dismissingthe complaint and all cross claims insofar as asserted against it by establishing, inter alia, that itwas merely one of several prime contractors hired by Uniondale as part of the subject renovationproject, and that it was neither responsible for, nor controlled or supervised, any of the workallegedly giving rise to the plaintiff's injury (see LaRosa v Internap Network Servs. Corp., 83 AD3d 905 [2011];Hall v Smithtown Cent. SchoolDist., 82 AD3d 703 [2011]). In response, the plaintiff failed to raise a triable issue offact. Accordingly, the Supreme Court should have granted Irwin's cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it.
A court may render a conditional judgment on the issue of contractual indemnity, pendingdetermination of the primary action so that the indemnitee may obtain the earliest possibledetermination as to the extent to which he or she may expect to be reimbursed (see George vMarshalls of MA, Inc., 61 AD3d 931 [2009]; O'Brien v Key Bank, 223 AD2d 830,831 [1996]). To obtain [*4]conditional relief on a claim forcontractual indemnification, "the one seeking indemnity need only establish that it was free fromany negligence and [may be] held liable solely by virtue of . . . statutory [orvicarious] liability" (Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999]; seeTranchina v Sisters of Charity Health Care Sys. Nursing Home, 294 AD2d 491, 493 [2002]).However, where a triable issue of fact exists regarding the indemnitee's negligence, a conditionalorder of summary judgment for contractual indemnification must be denied as premature (see Pardo v Bialystoker Ctr. & BikurCholim, Inc., 10 AD3d 298, 301 [2004]; State of New York v Travelers Prop. Cas.Ins. Co., 280 AD2d 756, 757-758 [2001]). Here, Uniondale met its initial burden ofdemonstrating its prima facie entitlement to judgment as a matter of law on its contractualindemnification claims against Northgate and Herrick's by submitting evidence establishing thatit was free from any negligence and can only be held liable based on statutory or vicariousliability as the owner of the subject property where the accident occurred. In response, Herrick'sand Northgate failed to raise a triable issue of fact. Accordingly, the Supreme Court should havegranted that branch of Uniondale's cross motion which was for conditional summary judgment onits contractual indemnification claims against Northgate and Herrick's.
Northgate's argument that it should be treated as a "gratuitous bailee" of the scissor lift and,therefore, could not be held liable absent gross or wanton negligence, is raised for the first timeon appeal and, thus, is not properly before this Court (see Ponce-Francisco v Plainview-Old Bethpage Cent. School Dist., 83AD3d 683 [2011]).
However, Northgate met its initial burden of demonstrating entitlement to judgment as amatter of law dismissing the causes of action alleging violations of Labor Law § 240 (1)and § 241 (6) insofar as asserted against it by establishing that it was not an owner, ageneral contractor, or a statutory agent under those provisions (see LaRosa v Internap Network Servs.Corp., 83 AD3d 905 [2011]; Hall v Smithtown Cent. School Dist., 82 AD3d 703 [2011]). Inopposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Courtshould have granted that branch of Northgate's cross motion which was for summary judgmentdismissing the Labor Law § 240 (1) and § 241 (6) causes of action insofar asasserted against it.
The parties' remaining contentions are without merit. Florio, J.P., Hall, Austin and Cohen,JJ., concur. [Prior Case History: 2010 NY Slip Op 32233(U).]