| Burton v CW Equities, LLC |
| 2012 NY Slip Op 05596 [97 AD3d 462] |
| July 17, 2012 |
| Appellate Division, First Department |
| John Burton et al., Appellants-Respondents, v CWEquities, LLC, Respondent-Appellant, and T.F.N. Development Corp., Doing Business as EastCoast Construction Group, Respondent. (And Other Third-PartyActions.) |
—[*1] Baxter Smith & Shapiro, P.C., White Plains (Dennis S. Hefferman of counsel), forrespondent-appellant. Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), forrespondent.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered October 22, 2010,which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for summaryjudgment as to liability on their Labor Law § 240 (1) claim, and denied defendant CWEquities, LLC's motion for summary judgment dismissing the complaint as against it and forconditional summary judgment on its cross claim for indemnification against defendant T.F.N.Development Corp., unanimously modified, on the law, to grant plaintiffs' motion and to grantdefendant CW Equities' motion with respect to its cross claim, and otherwise affirmed, withoutcosts.
Contrary to defendants' contention, the fact that the concrete walkway from which plaintiffJohn Burton fell was a permanent structure does not remove it from the coverage of Labor Law§ 240 (1). The walkway provided access to the rear yard of the building underconstruction, extending over an approximately 15-foot-deep vaulted area below grade level.However, it had no guard rails or other barriers. Thus, "plaintiff's injuries were the directconsequence of a failure to provide adequate protection against a risk arising from a physicallysignificant elevation differential" (seeRunner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
Since plaintiff's injury did not arise from the method he used to perform his work, but from adangerous condition of the workplace, it is not dispositive of his Labor Law § 200 claimthat CW Equities did not control the work at the building site (see Urban v No. 5 Times Sq. Dev., [*2]LLC, 62 AD3d 553, 555 [2009]; Hernandez v Columbus Ctr., LLC, 50AD3d 597, 598 [2008]). Whether CW Equities had the requisite notice of the dangerouscondition is an issue of fact raised by its principal's testimony that he visited the siteapproximately every other day (see Gordon v American Museum of Natural History, 67NY2d 836 [1986]). Similarly, as to plaintiff's common-law negligence claim, the record presentsan issue of fact whether the dangerous condition should have been apparent upon visualinspection (see Urban, 62 AD3d at 555).
Although in his bill of particulars plaintiff did not allege a violation of Industrial Code (12NYCRR) § 23-1.7 (b) (1) as a predicate for his Labor Law § 241 (6) claim, heidentified it in opposition to CW Equities' motion, and CW Equities claims no prejudice from thelate invocation of the provision (seeLatchuk v Port Auth. of N.Y. & N.J., 71 AD3d 560, 560-561 [2010]; Noetzell vPark Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 233 [2000]).
Notwithstanding the above-discussed issues of fact as to negligence on its part, CW Equitiesshould have been granted summary judgment on its claim for indemnification, since theindemnification provision at issue does not require T.F.N. to indemnify CW Equities for CWEquities' own negligence (see Brooks vJudlau Contr., Inc., 11 NY3d 204 [2008]; Hughey v RHM-88, LLC, 77 AD3d 520, 522-523 [2010]; Minorczyk v Dormitory Auth. of the Stateof N.Y., 74 AD3d 675, 675-676 [2010]).
The decision and order of this Court entered herein on February 14, 2012 is hereby recalledand vacated (92 AD3d 509 [2012]; see 2012 NY Slip Op 78975[U] [2012] [decidedsimultaneously herewith]). Concur—Mazzarelli, J.P., Saxe, Moskowitz, Freedman andManzanet-Daniels, JJ.