| Ventimiglia v Thatch, Ripley & Co., LLC |
| 2012 NY Slip Op 05163 [96 AD3d 1043] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Vito Ventimiglia, Appellant-Respondent, v Thatch, Ripley& Co., LLC, et al., Respondents, and Gotham Greenwich Construction Company, LLC,Defendant/Third-Party Plaintiff-Respondent. Sorbara Construction Corporation, Third-PartyDefendant-Respondent-Appellant. |
—[*1] Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Matthew J. Zizzamia ofcounsel), for third-party defendant-respondent-appellant. Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Lisa M. Rolle of counsel),for defendants-respondents. McGaw, Alventosa & Zajac, Jericho, N.Y. (Ross P. Masler of counsel), fordefendant/third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (McDonald, J.), enteredMay 24, 2011, as granted those branches of the motion of the defendants Thatch, Ripley & Co.,LLC, and Macklowe Properties, Inc., which were for summary judgment dismissing the causes ofaction alleging common-law negligence and violations of Labor Law §§ 200 and240 (1) insofar as asserted against them, and denied that branch of his cross motion which wasfor summary judgment on the issue of liability on the cause of action alleging a violation ofLabor Law § 240 (1) insofar as asserted against those defendants, and the third-partydefendant cross-appeals, as limited by its brief, from so much of the same order as granted thosebranches of the motion of the defendants Thatch, Ripley & Co., LLC, and Macklowe Properties,Inc., which were for summary judgment dismissing the causes of action alleging common-lawnegligence and violation of Labor Law § 200 insofar as asserted against those defendantsand on the cross claim of those defendants for contractual indemnification against it, denied thatbranch of the motion of those defendants, joined in by the third-party defendant, which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against those defendants, and granted that branch of the plaintiff's crossmotion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR23-4.2.
Ordered that the cross appeal from so much of the order as granted those branches of themotion of the defendants Thatch, Ripley & Co., LLC, and Macklowe Properties, Inc., which werefor summary judgment dismissing the causes of action alleging common-law negligence andviolations of Labor Law § 200 insofar as asserted against them is dismissed, without costsor [*2]disbursements, as the third-partydefendant-respondent-appellant is not aggrieved by that portion of the order cross-appealed from(see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of the defendants Thatch, Ripley & Co., LLC, and MackloweProperties, Inc., which were for summary judgment dismissing the causes of action allegingcommon-law negligence and violations of Labor Law §§ 200 and 240 (1) insofar asasserted against them and on their cross claim for contractual indemnification against thethird-party defendant, and substituting therefor a provision denying those branches of the motion;as so modified, the order is affirmed insofar as appealed from and insofar as reviewed on thecross appeal, without costs or disbursements.
The plaintiff, an employee of the third-party defendant, Sorbara Construction Corporation(hereinafter Sorbara), allegedly was injured when he fell while he was working on a project toconstruct a new condominium building. According to the plaintiff, on the date of the accident, atrench approximately 10 feet wide and 8 feet deep surrounded the work site. As the plaintiffrecounted it, three or four planks, which the plaintiff estimated to be 10 feet long, were placedacross the trench at a "slight decline," and served as the only way into and out of the site. Theplaintiff alleged that he was instructed by his foreman to bring some lumber onto the site. As hewas walking across the planks, carrying lumber on his shoulders, the planks "opened up," causinghim to fall into the trench.
The plaintiff commenced this action to recover damages against the owner of the site, thedefendant Thatch, Ripley & Co., LLC (hereinafter Thatch), the property manager, the defendantMacklowe Properties, Inc. (hereinafter Macklowe), and the construction manager, the defendantand third-party plaintiff Gotham Greenwich Construction Company, LLC (hereinafter Gotham).Gotham impleaded Sorbara, and Thatch and Macklowe (hereinafter together the Thatchdefendants) asserted cross claims against Sorbara seeking, among other things, contractualindemnification.
In an order entered May 24, 2011, the Supreme Court, inter alia, granted those branches ofthe Thatch defendants' motion which were for summary judgment dismissing the causes of actionalleging common-law negligence and violations of Labor Law §§ 200 and 240 (1)insofar as asserted against them and on their cross claim for contractual indemnification againstSorbara, denied that branch of the plaintiff's cross motion which was for summary judgment onthe issue of liability on the cause of action alleging a violation of Labor Law § 240 (1), andgranted that branch of the plaintiff's cross motion which was for leave to amend his bill ofparticulars to allege violations of 12 NYCRR 23-4.2. The plaintiff appeals, and Sorbaracross-appeals, from stated portions of the order. We modify.
The Supreme Court should have denied that branch of the Thatch defendants' motion whichwas for summary judgment dismissing the Labor Law § 240 (1) cause of action insofar asasserted against them. Liability under Labor Law § 240 (1) depends on whether the injuredworker's "task creates an elevation-related risk of the kind that the safety devices listed in section240 (1) protect against" (Broggy vRockefeller Group, Inc., 8 NY3d 675, 681 [2007]). The kind of accident triggeringLabor Law § 240 (1) coverage is one that will sustain the allegation that an adequate "'scaffold, hoist, stay, ladder or other protective device' " would have " 'shield[ed] the injuredworker from harm directly flowing from the application of the force of gravity to an object orperson' " (Runner v New York StockExch., Inc., 13 NY3d 599, 604 [2009] [emphasis removed], quoting Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; see Salazar v Novalex Contr. Corp., 18NY3d 134, 139 [2011]). "[T]he single decisive question [in determining whether Labor Law§ 240 (1) is applicable] is whether plaintiff's injuries were the direct consequence of afailure to provide adequate protection against a risk arising from a physically significantelevation differential" (Runner v New York Stock Exch. Inc., 13 NY3d at 603; see La Veglia v St. Francis Hosp., 78AD3d 1123, 1127 [2010]). Here, the plaintiff allegedly was injured while engaged in a taskthat entailed an elevation-related risk. Furthermore, contrary to the Thatch defendants'contention, the planks from which the plaintiff allegedly fell were being utilized in theperformance of his work and were, under the circumstances, the functional equivalent of ascaffold meant to prevent the plaintiff from falling into the eight-foot-deep trench (see McCay v J.A. Jones-GMO, LLC,74 AD3d 615 [2010]; De Jara v 44-14 Newtown Rd. Apt. [*3]Corp., 307 AD2d 948, 950 [2003]; Missico v TopsMkts., 305 AD2d 1052 [2003]; seealso Ervin v Consolidated Edison of N.Y., 93 AD3d 485 [2012]; Auriemma v Biltmore Theatre, LLC,82 AD3d 1, 8-9 [2011]). Therefore, the Thatch defendants failed to establish, prima facie,that the plaintiff's alleged injuries were not the direct consequence of a failure to provideadequate protection against a risk arising from a physically significant elevation differential.
However, the plaintiff is not entitled to summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1). In opposition to the plaintiff'sprima facie showing of entitlement to judgment as a matter of law, the defendants raised a triableissue of fact as to whether the trench described by the plaintiff and his coworker actually existed,and whether an accident occurred in the manner alleged by the plaintiff (see e.g. Kamolov v BIA Group, LLC,79 AD3d 1101 [2010]).
The Supreme Court also should have denied that branch of the Thatch defendants' motionwhich was for summary judgment dismissing the causes of action alleging common-lawnegligence and a violation of Labor Law § 200 insofar as asserted against them. Labor Law§ 200 codifies the common-law duty to maintain a safe work site (see Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 352 [1998]). Where, as here, a plaintiff contends that anaccident occurred because a dangerous condition existed on the premises where work was beingundertaken, an owner moving for summary judgment dismissing causes of action allegingcommon-law negligence and a violation of Labor Law § 200 has the initial burden ofmaking a prima facie showing that it neither created the dangerous condition nor had actual orconstructive notice of its existence (seeRodriguez v BCRE 230 Riverdale, LLC, 91 AD3d 933, 934 [2012]; Slikas v Cyclone Realty, LLC, 78AD3d 144, 148-149 [2010]; Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]). To provideconstructive notice, the defect must be visible and apparent and exist for a sufficient length oftime prior to the accident to permit the defendant to discover and remedy it (see Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837 [1986]). Here, in opposition to theThatch defendants' prima facie showing of entitlement to judgment as a matter of law, theplaintiff raised a triable issue of fact as to whether the Thatch defendants had constructive noticeof a dangerous premises condition by adducing evidence that the trench and planks from whichhe allegedly fell had existed for approximately six months prior to the occurrence of the accident.
The Supreme Court properly denied that branch of the Thatch defendants' motion, joined inby Sorbara, which was for summary judgment dismissing the cause of action alleging a violationof Labor Law § 241 (6) insofar as asserted against the Thatch defendants, and properlygranted that branch of the plaintiff's cross motion which was for leave to amend his bill ofparticulars to allege violations of Industrial Code provision 12 NYCRR 23-4.2. To recover underLabor Law § 241 (6), a plaintiff must establish that, in connection with construction,demolition, or excavation, an owner or general contractor violated an Industrial Code provisionwhich sets forth specific, applicable safety standards (see Ross v Curtis-Palmer Hydro-Elec.Co., 81 NY2d at 503-505; Weingarten v Windsor Owners Corp., 5 AD3d 674 [2004])."[L]eave to amend the pleadings to identify a specific, applicable Industrial Code provision 'mayproperly be granted, even after the note of issue has been filed, where the plaintiff makes ashowing of merit, and the amendment involves no new factual allegations, raises no new theoriesof liability, and causes no prejudice to the defendant' " (D'Elia v City of New York, 81 AD3d 682, 684 [2011], quoting Galarraga v City of New York, 54AD3d 308, 310 [2008]; see Jara vNew York Racing Assn., Inc., 85 AD3d 1121, 1123 [2011]; Dowd v City of New York, 40 AD3d908, 911 [2007]). The defendants failed to sustain their prima facie burden of demonstratingthat the Industrial Code provision governing hazardous openings (see 12 NYCRR 23-1.7[b] [1]), which was relied on by the plaintiff in his bill of particulars, was either factuallyinapplicable to this case or was satisfied. Further, the Supreme Court properly granted leave toamend the bill of particulars to add the Industrial Code provision governing trench and area-typeexcavations (see 12 NYCRR 23-4.2 [h], [i]) since the amendment will not prejudice thedefendants and the proposed amendment has merit (see D'Elia v City of New York, 81AD3d at 684).
Finally, the Supreme Court should have denied that branch of the Thatch defendants' motionwhich was for summary judgment on their cross claim for contractual indemnification againstSorbara. "[A] party seeking contractual indemnification must prove itself free from negligence,because to the extent its negligence contributed to the accident, it cannot be indemnified [*4]therefor" (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660,662 [2009]; see General Obligations Law § 5-322.1; Rodriguez v Tribeca 105, LLC, 93AD3d 655 [2012]; Baillargeon vKings County Waterproofing Corp., 91 AD3d 686, 688 [2012]). The Thatch defendantsfailed to make such a prima facie showing. Angiolillo, J.P., Eng, Lott and Cohen, JJ., concur.