| Harrington v Fernet |
| 2012 NY Slip Op 00890 [92 AD3d 1070] |
| February 9, 2012 |
| Appellate Division, Third Department |
| Mark Harrington et al., Respondents, v Gary Fernet et al.,Defendants, and Charlew Construction Company, Inc., Defendant and Third-PartyPlaintiff-Appellant. Stacy Harrington et al.,Third-Party |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (Andrew L. Spitz of counsel), for respondents. Stockton, Barker & Mead, L.L.P., Albany (Robert S. Stockton of counsel), for third-partydefendants-respondents.
Egan Jr., J. Appeal from an order of the Supreme Court (McGrath, J.), entered April 28, 2011in Rensselaer County, which, among other things, partially denied a motion by defendantCharlew Construction Company, Inc. for summary judgment dismissing the complaint against it.
In September 2006, plaintiff Mark Harrington (hereinafter Harrington) was an employee ofthird-party defendant M&A Construction,[FN1]a framing contractor hired by defendant Charlew Construction Company, Inc. to work on aresidential housing development in the City of Troy, Rensselaer County.[FN2]On the day in question, Harrington was using a Hitachi pneumatic framing gun loaded with2
Harrington and his spouse, derivatively, thereafter commenced this action against, amongothers, Charlew alleging violations of Labor Law §§ 200, 240 (1) and § 241(6) and common-law negligence. Charlew, in turn, commenced a third-party action forcontribution [*2]and/or indemnification against M&A and itsowners. Following joinder of issue and discovery, Charlew moved for summary judgmentdismissing plaintiffs' complaint and summary judgment on its contribution/indemnificationclaims. Supreme Court granted Charlew's motion to the extent that it dismissed plaintiffs' LaborLaw § 241 (6) claim, denied the motion as to plaintiffs' Labor Law § 200 andcommon-law negligence claims and deemed the request for summary judgment as to thecontribution and/or indemnification claims to be premature. This appeal by Charlewensued.[FN4]
We affirm. The record as a whole—including Harrington's examination before trialtestimony—indeed establishes that Charlew did not supervise Harrington (or any ofM&A's employees) or otherwise direct and control the means and methods of the framing work.Contrary to Charlew's assertion, however, such proof is not dispositive of the underlying motionbecause this is not a "means and methods" case; rather, this is a "hazardous condition" case (see Mott v Tromel Constr. Corp., 79AD3d 829, 830 [2010]).
"Labor Law § 200 is a codification of the common-law duty imposed upon an owneror general contractor to provide construction site workers with a safe place to work" (Gadani v Dormitory Auth. of State ofN.Y., 43 AD3d 1218, 1220 [2007] [internal quotation marks and citation omitted]; see Fassett v Wegmans Food Mkts.,Inc., 66 AD3d 1274, 1275-1276 [2009]). Where, as here, the injured worker contendsthat the underlying "accident arose not from the manner in which the work was performed, butrather from an allegedly dangerous condition at the work site, liability for a violation of LaborLaw § 200 and common-law negligence will be imposed if the property owner created thecondition or had actual or constructive notice of it, and failed to remedy the condition within areasonable amount of time" (White vVillage of Port Chester, 84 AD3d 946, 947-948 [2011]; see Gray v City of New York, 87 AD3d679, 679-680 [2011]; Weinberg vAlpine Improvements, LLC, 48 AD3d 915, 918-919 [2008]; Beadleston v American Tissue Corp.,41 AD3d 1074, 1076-1077 [2007]). The hazardous condition alleged here is the purportedabsence of backfill around the foundation in question.
In support of its motion for summary judgment, Charlew tendered the examination beforetrial testimony of one of its representatives, one of M&A's representatives and one ofHarrington's coworkers, all of whom unequivocally testified that the backfilling had beencompleted prior to the day of Harrington's accident. Such testimony further established that at thetime of Harrington's accident, he was not standing upon a muddy slope but, rather, uponcompacted sand—the latter of which, third-party defendant Donald Harrington testified,constituted a safe and stable place to work. Hence, the argument continues, no hazardouscondition existed upon the work site in the first instance.
Although the foregoing proof was, in our view, more than sufficient to discharge [*3]Charlew's initial burden on the motion for summaryjudgment,[FN5]Harrington testified with equal clarity that the foundation had not been backfilled at the time ofhis accident and that this absence of backfilling, coupled with the rainy conditions existing onsite that day, produced a slippery, muddy "60-degree slope" that, in turn, caused him to slip, falland accidentally discharge the nail into his leg. While Harrington's description of the siteconditions and the manner in which his injury occurred is sharply contradicted by other evidencein the record, it is well settled that "[i]t is not the court's function on a motion for summaryjudgment to assess credibility" (Ferrante v American Lung Assn., 90 NY2d 623, 631[1997]; see Oliver v Tanning Bed,Inc., 50 AD3d 1259, 1261 [2008]). As Harrington's testimony is sufficient to raise aquestion of fact as to the existence of a hazardous condition at the construction site, Charlew'smotion for summary judgment in this regard was properly denied.[FN6]
Finally, Supreme Court appropriately declined to address the indemnification issue. UnlessCharlew may be said to be "free from active negligence" (Husted v Central N.Y. Oil & Gas Co., LLC, 68 AD3d 1220, 1223[2009])—a determination that cannot be made at this juncture—its claim for eithercontractual or common-law indemnification is premature (see Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 1266[2010]). Charlew's remaining arguments, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Spain, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,with one bill of costs.
Footnote 1: M&A Construction is owned bythird-party defendants Stacy Harrington and Donald Harrington, who are Harrington'ssister-in-law and brother, respectively.
Footnote 2: Charlew was both the generalcontractor for the project and the landowner.
Footnote 3: Harrington asserts that he wascompelled to work on a muddy, sloped section of ground—occasioned, in turn, byinclement weather conditions and Charlew's alleged failure to properly backfill around thefoundation of the residence in question—and that this hazardous condition caused him toslip and fall, discharging the nail gun into his leg in the process. One of Harrington's coworkers,however, disputed this account of the incident, stating instead that Harrington—with hisfinger on the trigger—foolishly placed the nose of the nail gun against his thigh and thenused the nail gun as leverage as he attempted to step up onto a windowsill, causing the nail gunto discharge.
Footnote 4: In response to Charlew'ssubsequent motion to reargue, plaintiffs withdrew their Labor Law § 240 (1) cause ofaction.
Footnote 5: Our conclusion in this regardwould be no different if we evaluated such proof in the context of Charlew's role as the generalcontractor instead of its role as the landowner (see Harsch v City of New York, 78 AD3d 781, 782-783 [2010]; Wolfe v KLR Mech., Inc., 35 AD3d916, 918 [2006]).
Footnote 6: To the extent that Charlewargues, in the alternative, that the defect alleged by Harrington was open and obvious, therebyabsolving it of liability, we need note only that the record before us is insufficiently developed topermit us to grant Charlew summary judgment on this basis.