| Fernandez v Abalene Oil Co., Inc. |
| 2012 NY Slip Op 00750 [91 AD3d 906] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Thomas Fernandez, as Administrator of the Estate of DwayneFernandez, Deceased, et al., Appellants-Respondents, v Abalene Oil Co., Inc., et al.,Defendants/Third-Party Plaintiffs-Respondents-Appellants, et al., Defendant/Third-PartyDefendant, et al., Defendants. I.M.C. Antenna & Tower, Inc., Third-Party Defendant/SecondThird-Party Plaintiff-Respondent, et al., Second Third-PartyDefendants. |
—[*1] Cartafalsa, Slattery, Turpin & Lenoff, New York, N.Y. (Raymond F. Slattery of counsel), fordefendants/third-party plaintiffs-respondents-appellants. Nicoletti, Gonson, Spinner & Owen LLP, New York, N.Y. (Jamie T. Packer of counsel), forthird-party defendant/second third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated August23, 2010, as denied that branch of their motion which was for summary judgment on the issue ofliability pursuant to Labor Law § 240 (1) insofar as asserted by the plaintiff MarkFernandez against the defendants/third-party plaintiffs, Abalene Oil Co., Inc., AT&T WirelessServices, Inc., and Nextel of New York, Inc., and the defendants/third-party plaintiffs, AbaleneOil Co., Inc., AT&T Wireless Services, Inc., and Nextel of New York, Inc., cross-appeal, aslimited by their brief, from so much of the same order as denied those branches of their crossmotion which were for summary judgment dismissing the complaint insofar as asserted by theplaintiff Mark Fernandez against them and on the issue of liability on their third-party cause ofaction for contractual indemnification insofar as asserted by the defendant/third-party plaintiffNextel of New York, Inc., against the third-party defendant/second third-party plaintiff, I.M.C.Antenna & Tower, Inc.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and thosebranches of the cross motion of the defendants/third-party plaintiffs Abalene Oil Co., Inc., AT&TWireless Services, Inc., and Nextel of New York, Inc., which were for summary judgmentdismissing the complaint insofar as asserted by the plaintiff Mark Fernandez against them and on[*2]the issue of liability on their third-party cause of action forcontractual indemnification insofar as asserted by the defendant/third-party plaintiff Nextel ofNew York, Inc., against the third-party defendant/second third-party plaintiff, I.M.C. Antenna &Tower, Inc., are granted; and it is further,
Ordered that one bill of costs is awarded to the defendants/third-party plaintiffs, Abalene OilCo., Inc., AT&T Wireless Services, Inc., and Nextel of New York, Inc., payable by the plaintiffsand the third-party defendant/second third-party plaintiff, I.M.C. Antenna & Tower, Inc.,appearing separately and filing separate briefs.
The plaintiff Thomas Fernandez's decedent, Dwayne Fernandez (hereinafter the decedent),and the plaintiff Mark Fernandez (hereinafter Fernandez) were brothers hired by the third-partydefendant/second third-party plaintiff, I.M.C. Antenna & Tower, Inc. (hereinafter IMC), to installan antenna for the defendant/third-party plaintiff Nextel of New York, Inc. (hereinafter Nextel),on a cellular tower owned by the defendant third-party plaintiff AT&T Wireless Services, Inc.(hereinafter AT&T), located on property owned by the defendant/third-party plaintiff AbaleneOil Co., Inc. (hereinafter Abalene). On the date of the accident, the decedent climbed up thetower approximately 82 feet to tighten a bolt. As Fernandez spoke with his supervisor justoutside the fence that surrounded the tower, he noticed that one of the decedent's ropes wasmoving "in a strange way." The decedent fell off the tower and landed on his back on an "icebridge" that was 8 to 9 feet above ground level. The decedent's fall dislodged a number of steelstep bolts that rained down on the work site. Some of the bolts hit the ice bridge and the adjacentbuilding, and some came towards Fernandez. As the bolts fell from the tower, Fernandez duckedto avoid being struck. Afterwards, Fernandez ran towards the decedent and allegedly sustained aninjury when he slipped in the snow. The decedent died at the scene. The accident allegedly wascaused by the failure of a wire rope grab meant to secure the decedent to a safety wire that waspermanently attached to the cellular tower.
The plaintiffs commenced this action against, among others, Abalene, AT&T, and Nextel(hereinafter collectively the Abalene defendants), asserting, inter alia, causes of action alleging aviolation of Labor Law § 200 and common-law negligence on behalf of Fernandez. TheSupreme Court, among other things, denied that branch of the plaintiffs' motion which was forsummary judgment on the issue of liability pursuant to Labor Law § 240 (1) insofar asasserted by Fernandez against the Abalene defendants, granted that branch of the plaintiffs'motion which was for summary judgment on the issue of liability on that cause of action insofaras asserted by the plaintiff Thomas Fernandez, as administrator of the decedent's estate, againstthe Abalene defendants, and denied those branches of the Abalene defendants' cross motionwhich were for summary judgment dismissing the complaint insofar as asserted by Fernandezasserted against them and on the issue of liability on their third-party cause of action forcontractual indemnification insofar as asserted by Nextel against IMC.
The Supreme Court properly denied that branch of the plaintiffs' motion which was forsummary judgment on the issue of liability pursuant to Labor Law § 240 (1) insofar asasserted by Fernandez against the Abalene defendants. The complaint did not plead such a causeof action and the plaintiffs failed to seek leave to amend the complaint to assert such a cause ofaction. Contrary to the plaintiffs' contention, Fernandez does not have a cause of action underLabor Law § 240 (1) based on the "zone-of-injury" rule (Bovsun v Sanperi, 61NY2d 219, 228 [1984]; cf. Del Vecchio v State of New York, 246 AD2d 498 [1998]).The alleged psychological injuries sustained by Fernandez were not a direct consequence of afailure to provide adequate protection to him against a risk arising from a physically significantelevation differential (see Wilinski v334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 6 [2011]; Runner v New York Stock Exch., Inc.,13 NY3d 599, 603 [2009]; LaVeglia v St. Francis Hosp., 78 AD3d 1123, 1127 [2010]). To apply the "zone-of-injury"rule to a cause of action alleging a violation of Labor Law § 240 (1) "would, in effect,extend the owner's nondelegable duty to a person who was not injured by the particular hazardthe statute was designed to guard against" (Del Vecchio v State of New York, 246 AD2dat 500; see Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995]).
The Supreme Court should have granted that branch of the Abalene defendants' cross motionwhich was for summary judgment dismissing the complaint insofar as asserted by Fernandez[*3]against them. Contrary to the conclusion of the SupremeCourt, the accident "did not arise from a defective condition inherent on the . . .property, but rather, arose as a result of the allegedly defective 'means' utilized by [the decedent]to perform his work" (Duarte v State ofNew York, 57 AD3d 715, 716 [2008]; see McKee v Great Atl. & Pac. Tea Co., 73 AD3d 872 [2010]; Jenkins v Walter Realty, Inc., 71 AD3d954 [2010]; Radoncic vIndependence Garden Owners Corp., 67 AD3d 981, 982 [2009]; Gomez v City of New York, 56 AD3d522, 523-524 [2008]).
Where, as here, "a claim arises out of alleged defects or dangers in the methods or materialsof the work, recovery . . . cannot be had under Labor Law § 200 [and forcommon-law negligence] unless it is shown that the party to be charged had the authority tosupervise or control the performance of the work" (Ortega v Puccia, 57 AD3d 54, 61 [2008]; see Radoncic vIndependence Garden Owners Corp., 67 AD3d at 982). "A defendant has the authority tosupervise or control the work for purposes of Labor Law § 200 when that defendant bearsthe responsibility for the manner in which the work is performed" (Ortega v Puccia, 57AD3d at 62). In response to the Abalene defendants' prima facie showing that they did not havethe authority to supervise or control the decedent's work, the plaintiffs failed to raise a triableissue of fact.
The Supreme Court also should have granted that branch of the Abalene defendants' crossmotion which was for summary judgment on the issue of liability on their third-party cause ofaction for contractual indemnification insofar as asserted by Nextel against IMC. "[A] partyseeking contractual indemnification must prove itself free from negligence, because to the extentits negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v GealtecRemodeling Corp., 58 AD3d 660, 662 [2009], citing General Obligations Law §5-322.1; see Reynolds v County of Westchester, 270 AD2d 473 [2000]). The Abalenedefendants made a prima facie showing that Nextel was free from negligence by profferingevidence that it did not have the authority to supervise or control the decedent's work. Inopposition, IMC failed to raise a triable issue of fact. Angiolillo, J.P., Dickerson, Leventhal andHall, JJ., concur. [Prior Case History: 2010 NY Slip Op 32604(U).]