| Dwyer v Central Park Studios, Inc. |
| 2012 NY Slip Op 06184 [98 AD3d 882] |
| September 18, 2012 |
| Appellate Division, First Department |
| Steve Dwyer, Appellant-Respondent, v Central ParkStudios, Inc., et al., Respondents, and Michael Slosberg et al., Respondents-Appellants. CentralPark Studios, Inc., et al., Third-Party Plaintiffs-Respondents, v DSA Builders, Third-PartyDefendant-Respondent-Appellant; American Home Assurance Company,Intervenor-Respondent-Appellant. Michael Slosberg et al., Second Third-PartyPlaintiffs-Respondents-Appellants, v DSA Builders, Second Third-PartyDefendant-Respondent-Appellant. |
—[*1] Mischel & Horn, PC, New York (Scott T. Horn of counsel), for Slosbergrespondents-appellants. Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Mark J. Volpi of counsel), for DSABuilders, respondent-appellant. McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for American HomeAssurance Company, respondent-appellant. [*2]Herzfeld & Rubin, P.C., New York (Miriam Skolnik ofcounsel), for respondents.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered December 8, 2010,which, to the extent appealed from as limited by the briefs, denied plaintiff Steve Dwyer's crossmotion for partial summary judgment on the issue of liability on his Labor Law §§240 (1) and 241 (6) claims, denied defendants/second third-party plaintiffs Michael Slosberg andJanet Cohn Slosberg's cross motion for summary judgment dismissing the cross claim forcontractual indemnification brought by Central Park Studios and granted Central Park Studios'smotion for summary judgment on that claim, denied third-party defendant/second third-partydefendant DSA Builders's cross motion for summary judgment dismissing Central Park Studios'scontractual indemnification claim, and denied intervenor American Home Assurance Company'smotion for summary judgment dismissing the contribution and common-law indemnificationclaims asserted against DSA Builders, unanimously modified, on the law, to grant plaintiff'scross motion for partial summary judgment on the issue of liability on the Labor Law §240 (1) claim, and, upon a search of the record, to grant that part of Central Park Studios'smotion for summary judgment dismissing the Labor Law § 241 (6) claim predicated on aviolation of 12 NYCRR 23-1.21 (b) (4) (i), and otherwise affirmed, without costs.
Plaintiff Steve Dwyer was employed by third-party defendant DSA Builders (DSA), ageneral contractor. Defendants Michael Slosberg and Janet Cohn Slosberg retained DSA torenovate and combine their two adjoining cooperative apartment units. Defendant/third-partyplaintiff Central Park Studios, Inc. (CPS) owns the apartment building. Intervenor AmericanHome Assurance Company (AHAC) is DSA's workers' compensation and liability insurer.
On the day of the accident, plaintiff was standing on a ladder, unassisted, attempting toinstall a large piece of Sheetrock in the ceiling of the Slosberg's apartment. Plaintiff was holdingthe Sheetrock, which was several feet wide, against the ceiling with his left hand. As he reachedwith his right hand for the screw gun strapped to his side, the ladder collapsed, plaintiff fellbackwards onto the floor, and the Sheetrock slab fell on top of him. As a result, plaintiffsustained injuries to his right hand, wrist and arm. During discovery, DSA produced a ladder inexcellent condition that was purportedly used by plaintiff on the day of the accident. However,the ladder's manufacturer, in an affidavit, stated that, based on markings on the ladder, it wasmanufactured several years after plaintiff's accident.
Plaintiff commenced this action against the Slosbergs and CPS, alleging common-lawnegligence and violation of Labor Law §§ 200, 240 (1) and 241 (6). CPS asserted across claim for contractual indemnification against the Slosbergs, and commenced a third-partyaction against DSA, seeking contribution and common-law and contractual indemnification. TheSlosbergs similarly commenced a second third-party action against DSA, seeking common-lawand contractual indemnification. AHAC intervened in the first third-party action.
The court should have granted plaintiff's cross motion for partial summary judgment on theissue of liability under Labor Law § 240 (1) because plaintiff's injuries were proximatelycaused, at least in part, by the failure to provide proper protection as required by the statute (see Cevallos v Morning Dun Realty,Corp., 78 AD3d 547, 548 [2010]; Fontaine v Juniper Assoc., 67 AD3d 608, 609 [2009]). Theundisputed evidence established that plaintiff was injured when he fell from an unsecured ladderthat collapsed, which is sufficient to make out a prima facie case on the section 240 (1) claim (see Demaj v Pelham Realty, LLC, 82AD3d 531, 532 [2011]). In [*3]opposition, CPS and DSAfailed to raise an issue of fact. Whether or not the ladder was in good condition, as CPS and DSAclaim it was, plaintiff still is entitled to summary judgment on this claim because he was notrequired to show that the ladder was defective in some manner (see Orellano v 29 E. 37th St.Realty Corp., 292 AD2d 289, 290-291 [2002]).
The testimony of DSA's principal that, after the accident, plaintiff stated that he lost hisbalance raises, at most, an issue of comparative negligence, which would not bar recovery undersection 240 (1) (see id. at 291). Furthermore, this alleged statement is consistent withplaintiff's claim that he fell when the ladder collapsed. There is no view of the evidence thatplaintiff was the sole proximate cause of his injuries. Even if other ladders were available at thejob site, there was no showing that plaintiff was expected, or instructed, to use those ladders andfor no good reason chose not to do so (see Gallagher v New York Post, 14 NY3d 83, 88-89 [2010]; Torres v Our Townhouse, LLC, 91AD3d 549 [2012]). Nor is there any evidence that plaintiff was told not to use the ladder heused.
In view of the conflicting evidence about the condition of the ladder, the court properlydenied plaintiff's motion for summary judgment as to that part of the Labor Law § 241 (6)claim predicated on 12 NYCRR 23-1.21 (b) (4) (ii) (requiring all ladder footings to be firm).Although not addressed by the motion court, we find that issues of fact also exist as to whetherthere was a violation of 12 NYCRR 23-1.21 (b) (3) (requiring ladders to be maintained in goodcondition). However, that part of the section 241 (6) claim based on 12 NYCRR 23-1.21 (b) (4)(i) should be dismissed, because the ladder here was not "used as a regular means of accessbetween floors or other levels" in the building (id.).
CPS is entitled to summary judgment on its cross claim for contractual indemnificationagainst the Slosbergs. CPS and the Slosbergs entered into an alteration agreement for therenovation project in which the Slosbergs agreed to indemnify CPS against "claims for damageto persons or property suffered as a result of the alterations." Since there is no question thatplaintiff's injuries arose out of the alterations, CPS is entitled to be indemnified. There is no meritto the Slosberg's argument that General Obligations Law § 5-321 renders theindemnification provision unenforceable. Although the indemnification clause purports toindemnify CPS for its own negligence, it is nevertheless enforceable because there is no view ofthe evidence that CPS was actually negligent. The motion court dismissed the Labor Law §200 and common-law negligence claims against CPS, and no party has appealed from that part ofthe court's decision. Thus, because CPS's liability is purely vicarious under Labor Law §240 (1), and potentially section 241 (6), enforcement of the indemnification provision does notrun afoul of General Obligations Law § 5-321 (see Itri Brick & Concrete Corp. v AetnaCas. & Sur. Co., 89 NY2d 786, 795 n 5 [1997]; Correa v 100 W. 32nd St. RealtyCorp., 290 AD2d 306, 306 [2002]).
The motion court properly denied DSA's cross motion for summary judgment dismissingCPS's contractual indemnification claim. In view of the fact that DSA signed the alterationagreement, and evidence showing that it procured insurance coverage naming CPS as anadditional insured in order to commence the alteration work, DSA failed to establish, as a matterof law, that it did not agree to indemnify CPS under the agreement. Thus, DSA is not entitled tosummary judgment at this point.
The motion court was correct in denying AHAC's motion for summary judgment dismissingthe contribution and common-law indemnification claims asserted against DSA. AHAC's motionwas premature, given that plaintiff was still scheduled to undergo three [*4]additional surgeries, an additional deposition of the plaintiff wasstill pending following the three surgeries, and plaintiff has not yet been examined by anyphysicians at the request of the defendants (see CPLR 3212 [f]).Concur—Mazzarelli, J.P., Catterson, DeGrasse, Richter and Manzanet-Daniels, JJ.[Prior Case History: 2010 NY Slip Op 33672(U).]