| Hernandez v Argo Corp. |
| 2012 NY Slip Op 04224 [95 AD3d 782] |
| May 31, 2012 |
| Appellate Division, First Department |
| Bonifacio Hernandez, Respondent, v Argo Corp. et al.,Respondents-Appellants, and DMA Construction Corp., Appellant-Respondent. Argo Corp. etal., Third-Party Plaintiffs-Respondents-Appellants, v Accura Restoration, Inc., et al., Third-PartyDefendants-Appellants-Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (William Wingertzahn ofcounsel), for Accura Restoration, Inc., respondent-appellant/appellant-respondent. Smith & Laquercia, LLP, New York (Lana S. Kaganovsky of counsel), for The Argo Corp.and Jemrock Realty Co., LLC, respondents-appellants. Diamond and Diamond LLC, New York (Stuart Diamond of counsel), forrespondent.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 15, 2011,which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partialsummary judgment on his Labor Law § 240 (1) claim, granted defendants/third-partyplaintiffs Argo Corp. and Jemrock Realty Corp.'s motion for summary judgment dismissing theLabor Law § 200 and common-law negligence claims as against them and for summaryjudgment on their cross claims for common-law indemnification against defendant/third-partydefendant Accura Restoration, Inc., and denied their motion for summary judgment dismissingthe Labor Law § 240 (1) claim as against them and for summary judgment on theirthird-party claims for contractual indemnification against defendant/third-party defendant DMAConstruction Corp., [*2]denied DMA's motion for summaryjudgment dismissing all claims for contribution and indemnification against it, and deniedAccura's motion for summary judgment dismissing the Labor Law § 240 (1) and §200 and the common-law negligence claims as against it and for summary judgment on its crossclaim for contractual indemnification against DMA, unanimously modified, on the law, to grantconditionally Argo and Jemrock's and Accura's motions for summary judgment on their claimsfor contractual indemnification against DMA, and otherwise affirmed, without costs.
The configuration of the scaffold required workers regularly to travel across an open andunguarded gap of three feet. Moreover, the deposition testimony of the various defendants wasless than conclusive on the procedure that workers were supposed to follow when crossing thegap. Defendants' argument focused nearly exclusively on plaintiff's detaching himself from therope safety line before jumping across the gap; they failed to rebut the evidence that theyprovided an inadequate safety device in violation of Labor Law § 240 (1) (see Zimmerv Chemung County Performing Arts, 65 NY2d 513 [1985]). Given defendants' statutoryviolation, plaintiff's conduct cannot have been the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 286, 290 [2003]; Torres v Monroe Coll., 12 AD3d 261 [2004]).
As to the Labor Law § 200 and common-law negligence claims, the record presents anissue of fact whether Accura, which exercised daily oversight of DMA workers' safety, providedall materials, and played a role in designating where they would be kept and how accessed, hadthe authority to control the activity that brought about plaintiff's injury (see Russin v Louis N.Picciano & Son, 54 NY2d 311, 316-317 [1981]). Moreover, there is evidence that DMAinstalled the scaffold under Accura's direction, and it is undisputed that Accura placed the ladderin a location that necessitated the unusual configuration of the scaffold. Thus, issues of fact existwhether Accura was not only aware of the defective scaffold but also created the defect (see Metus v Ladies Mile Inc., 51 AD3d537 [2008]).
For the same reasons, Jemrock and Argo, whose sole liability to plaintiff was vicarious underLabor Law § 240 (1), are entitled to common-law indemnification against Accura (see Picchione v Sweet Constr. Corp.,60 AD3d 510, 513 [2009]).
Jemrock and Argo are also entitled to conditional summary judgment on their claims forcontractual indemnification against DMA, as is Accura. Since the contract provides that DMAwill indemnify Jemrock, Argo and Accura "[t]o the fullest extent of the law" and only to theextent caused by its own negligence, the indemnification provision is not barred by GeneralObligations Law § 5-322.1 (seeBrooks v Judlau Contr., Inc., 11 NY3d 204, 208-209 [2008]). [*3]However, the extent to which Jemrock, Argo and Accura areentitled to indemnification depends on the extent to which DMA's negligence is determined tohave contributed to the accident (seeHughey v RHM-88, LLC, 77 AD3d 520, 522-523 [2010]). Concur—Tom, J.P.,Andrias, Saxe, Moskowitz and Acosta, JJ.