| Lopez-Dones v 601 W. Assoc., LLC |
| 2012 NY Slip Op 05803 [98 AD3d 476] |
| August 1, 2012 |
| Appellate Division, Second Department |
| Brunilda Lopez-Dones, Appellant-Respondent, v 601 WestAssociates, LLC, et al., Respondents, B.R. Fries & Associcates, Inc., Defendant/SecondThird-Party Plaintiff-Respondent-Appellant, B.R. Fries & Associates, LLC,Respondent-Appellant, Ronsco, Inc., Defendant/Third-Party Plaintiff-Respondent-Appellant, andCapital Ceiling Systems, Inc., et al., Defendants/Third-Party Defendants-Respondents. FalconElectrical Contracting Corp., Second Third-PartyDefendant-Appellant-Respondent. |
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O'Connor Redd LLP, White Plains, N.Y. (Amy Lynn Fenno of counsel), for secondthird-party defendant-appellant-respondent. James J. Toomey, New York, N.Y. (Eric P. Tosca of counsel), for defendant/secondthird-party plaintiff-respondent-appellant and respondent-appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Louise Cherkisof counsel), for defendant/third-party plaintiff-respondent-appellant. Haworth Coleman & Gerstman, LLC, New York, N.Y. (Nora Coleman of counsel), forrespondents. Quirk and Bakalor, P.C., New York, N.Y. (Jeanne M. Boyle of counsel), fordefendant/third-party defendant-respondent Capital Ceiling Systems, Inc. Hodgson Russ, LLP, New York, N.Y. (Margaret M. Cmielewski of counsel), fordefendant/third-party defendant-respondent Sunset Interiors Corp.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hernotice of appeal and brief, from so much of an order of the Supreme Court, Kings County(Kramer, J.), dated January 5, 2010, as denied those branches of her motion which were forsummary judgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 240 (1) insofar as asserted against the defendants 601 West Associates, LLC,Tommy Hilfiger U.S.A., Inc., and B.R. Fries & Associates, LLC, and the defendant/secondthird-party plaintiff, B.R. Fries & Associates, Inc.; the second third-party defendant, FalconElectrical Contracting Corp., separately appeals, as limited by its brief, from so much of the sameorder as denied that branch of its cross motion which was for summary judgment dismissing thecause of action in the second third-party complaint for contractual indemnification; the defendantB.R. Fries & Associates, LLC, and the defendant/second third-party plaintiff, B.R. Fries &Associates, Inc., cross-appeal, as limited by their brief, from so much of the same order as deniedthose branches of their cross motion which were for summary judgment on their cross claimsagainst the defendant/third-party plaintiff, Ronsco, Inc., for contractual indemnification andcommon-law indemnification and on the causes of action in the second third-party complaint forcontractual indemnification and common-law indemnification; and the defendant/third-partyplaintiff, Ronsco, Inc., cross appeals, as limited by its brief, from so much of the same order asdenied those branches of its cross motion which were for summary judgment dismissing thecommon-law negligence cause of action insofar as asserted against it and the cross claims of thedefendant B.R. Fries & Associates, LLC, and the defendant/second third-party plaintiff, B.R.Fries & Associates, Inc., for contractual indemnification and common-law indemnificationinsofar as asserted against it.
Ordered that the order is reversed insofar as appealed from by the plaintiff, on the law, andthose branches of the plaintiff's motion which were for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1) insofar asasserted against the defendants 601 West Associates, LLC, Tommy Hilfiger U.S.A., Inc., andB.R. Fries & Associates, LLC, and the defendant/second third-party plaintiff, B.R. Fries &Associates, Inc., is granted; and it is further,
Ordered that the order is affirmed insofar as appealed from by the second third-partydefendant, Falcon Electrical Contracting Corp., and insofar as cross-appealed from, and, uponsearching the record, summary judgment is awarded to the defendant B.R. Fries & Associates,LLC, and the defendant second third-party plaintiff, B.R. Fries & Associates, Inc., dismissing thecause of action alleging a violation of Labor Law § 241 (6) insofar as asserted againstthem; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendants 601 WestAssociates, LLC, Tommy Hilfiger U.S.A., Inc., and B.R. Fries & Associates, LLC, and thedefendant/second third-party plaintiff, B.R. Fries & Associates, Inc.
The defendant Tommy Hilfiger, U.S.A., Inc. (hereinafter Hilfiger), which leased certaincommercial premises from the defendant 601 West Associates, LLC (hereinafter 601 West),engaged the defendant B.R. Fries & Associates, LLC, or the defendant second third-partyplaintiff, B.R. Fries & Associates, Inc. (hereinafter together the BRF defendants), as generalcontractor for the renovation of the premises. Pursuant to a subcontract with the BRF defendants,the defendant/third-party plaintiff, Ronsco, Inc. (hereinafter Ronsco), performed certain drywalland ceiling work. Pursuant to sub-subcontracts with Ronsco, the defendant/third-party defendantSunset Interiors Corp. (hereinafter Sunset) performed the drywall finishing work, and thedefendant/third-party defendant Capital Ceiling Systems, Inc. (hereinafter Capital), performedcertain ironwork. Pursuant to a subcontract with the BRF defendants, the second third-partydefendant, Falcon Electrical Contracting Corp. (hereinafter Falcon) performed certain electricalwork.
The plaintiff was an apprentice electrician employed by Falcon. At her depositions, sherecounted that, on the morning of June 1, 2005, she reported to work at the premises. Soon afterher arrival, her supervisor, also a Falcon employee, directed her to perform certain electricalwork on a particular "pull box" hanging from a ceiling. Neither her supervisor nor anyone elseprovided the plaintiff with a safety device, or assigned someone to help her with her work.[*2]
The plaintiff carried an A-frame ladder over to the pullbox. The pull box was hanging from a ceiling in an open space, without any nearby walls. Othertradespeople were working throughout that space. After making sure that the area beneath thepull box was clear of debris, the plaintiff "completely" opened the ladder. She then pulled downon the ladder's hinges, which locked into place. She then conducted a visual inspection of theladder, which revealed no cracks and that the ladder's feet were level with the concrete floor. Shethen shook the ladder and was satisfied that it was stable. She then ascended the ladder. Afterchecking the area to make sure that no tradespeople were beneath her, she began performing thework on the pull box.
For the next few hours, the plaintiff performed her work without incident. The work requiredher to focus her attention upwards, inside of the pull box. At some point while she was working,an unidentified man pushing a loaded dolly past the ladder caused the dolly to come into contactwith the ladder, and the impact caused the ladder to tip. The ladder did not fall to the concretefloor, but, rather, came into contact with a nearby air conditioning duct. The plaintiff, who losther footing, "immediately" reacted to the impact by grabbing onto a metal rod extending from theceiling. She had to "twist[ ]" her body in order to reach the metal rod, and was able to hook herleg into the ladder, get the ladder back to its upright position, and regain her footing on theladder.
The plaintiff allegedly sustained certain injuries as a result of her attempt to avoid a fall fromthe ladder. She commenced this personal injury action, alleging violations of Labor Law§§ 200, 240 (1) and 241 (6), as well as common-law negligence.
"Labor Law § 240 (1) imposes upon owners and general contractors, and their agents,a nondelegable duty to provide safety devices necessary to protect workers from risks inherent inelevated work sites" (McCarthy vTurner Constr., Inc., 17 NY3d 369, 374 [2011]). A lessee of premises will be deemed an"owner[ ]" within the meaning of Labor Law § 240 (1) if the lessee had an "interest in the[premises] and . . . fulfilled the role of owner by contracting to have workperformed for [its] benefit" (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616,618 [2008] [internal quotation marks omitted]).
To prevail on a cause of action alleging a violation of Labor Law § 240 (1), a plaintiffmust establish that the statute was violated and that the violation was a proximate cause of his orher injuries (see Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d 280, 287-289 [2003]). Labor Law § 240 (1)may apply where a plaintiff is injured as a result of his or her attempt to prevent a fall from aladder (see Lacey v Turner Constr. Co., 275 AD2d 734, 735 [2000]). Here, the plaintiff,relying on her deposition testimony, established, prima facie, that Labor Law § 240 (1) wasviolated and that the violation was a proximate cause of her injuries (see Cordero v KaiserOrg., 288 AD2d 424, 424-425 [2001]; Mooney v PCM Dev. Co., 238 AD2d 487,488 [1997]; Quinlan v Eastern Refractories Co., 217 AD2d 819, 820 [1995]; Boshartv City of Buffalo, 185 AD2d 706 [1992]; cf. Alomia v New York City Tr. Auth., 292AD2d 403, 405 [2002]). In opposition, 601 West, Hilfiger, and the BRF defendants, whichoffered no evidence contradicting the plaintiff's account of the events surrounding the accident,failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted thosebranches of the plaintiff's motion which were for summary judgment on the issue of liability onthe cause of action alleging a violation of Labor Law § 240 (1) insofar as asserted against601 West, Hilfiger, and the BRF defendants.
The Supreme Court granted those branches of the cross motions of 601 West and Hilfiger,Ronsco, Sunset, and Capital which were for summary judgment dismissing the cause of actionalleging a violation of Labor Law § 241 (6) insofar as asserted against each of them. Sincethe Supreme Court properly granted those branches of those cross motions, under thecircumstances, we grant the BRF defendants' request to search the record and award summaryjudgment to them dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against them, pursuant to our authority to award such relief to anonmoving party with respect to an issue that was the subject of the motion before the SupremeCourt (see Juncal v W 12/14 WallAcquisition Assoc., LLC, 15 AD3d 447, 449 [2005]). Those defendants whichcross-moved for summary judgment dismissing the Labor Law § 241 (6) cause of actioninsofar as asserted against them established, [*3]prima facie, thatthe provisions of the Industrial Code cited in the plaintiff's bill of particulars either wereinapplicable or were not violated (see Paladino v Society of N.Y. Hosp., 307 AD2d 343,345 [2003]). Since, in opposition, the plaintiff failed to raise a triable issue of fact (id.),and the BRF defendants would have the same defense to that cause of action as the cross-movingdefendants, an award of summary judgment to the BRF defendants dismissing that cause ofaction insofar as asserted against them is appropriate here.
On their cross motions, however, the BRF defendants, Ronsco, and Falcon failed to establish,prima facie, that their respective employees did not negligently cause the accident. Accordingly,the Supreme Court properly denied those branches of their respective cross motions which werefor summary judgment on their respective claims for contractual indemnification (see Rodriguez v Tribeca 105, LLC, 93AD3d 655, 657 [2012]; General Obligations Law § 5-322.1), and common-lawindemnification (see Stevenson v Alfredo, 277 AD2d 218, 220 [2000]).
The parties' remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal andAustin, JJ., concur. [Prior Case History: 26 Misc 3d 1209(A), 2010 NY Slip Op50018(U).]