| Zastenchik v Knollwood Country Club |
| 2012 NY Slip Op 08515 [101 AD3d 861] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Andrew Zastenchik, Respondent, v Knollwood CountryClub, Defendant/Third-Party Plaintiff-Respondent, et al., Defendant. Aqua Plumbing & HeatingCorp., Third-Party Defendant-Appellant. |
—[*1] Worby Groner Edelman LLP, White Plains, N.Y. (Richard S. Vecchio, Michael G. DelVecchio, and Sara Schepps Matschke of counsel), for plaintiff-respondent. Alan I. Lamer (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 third-party defendant, AquaPlumbing & Heating Corp., appeals, as limited by its brief, from so much of an order of theSupreme Court, Westchester County (Liebowitz, J.), entered July 7, 2011, as denied thosebranches of its motion which were for summary judgment dismissing the causes of action torecover damages for common-law negligence and violations of Labor Law §§ 200and 241 (6), in effect, denied that branch of its motion which was for summary judgmentdismissing the cause of action to recover damages for a violation of Labor Law § 240 (1),and granted that branch of the motion of the defendant/third-party plaintiff, Knollwood CountryClub, which was for summary judgment on its third-party cause of action for contractualindemnification.
Ordered that order is modified, on the law, (1) by deleting the provisions thereof denying thatbranch of the motion of the third-party defendant, Aqua Plumbing and Heating Corp., which wasfor summary judgment dismissing the cause of action to recover damages for violation of LaborLaw § 241 (6), and, in effect, denying that branch of the motion of the third-partydefendant, Aqua Plumbing and Heating Corp., which was for summary judgment dismissing thecause of action to recover damages for a violation of Labor Law § 240 (1), and substitutingtherefor provisions granting those branches of the motion, and (2) by deleting the provisionthereof granting that branch of the motion of the defendant/third-party plaintiff, KnollwoodCountry Club, which was for summary judgment on its third-party cause of action for contractualindemnification, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, a plumber, was allegedly injured when his foot became stuck in the mud [*2]to the depth of about 10 inches as he was retrieving pipes to beinstalled in a pro shop being constructed at a site owned by the Knollwood Country Club(hereinafter Knollwood). He commenced an action against Knollwood and Matell ContractingCompany, Inc., the general contractor on the site, to recover damages for common-lawnegligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). Knollwoodcommenced a third-party action seeking, inter alia, contractual indemnification against AquaPlumbing and Heating Corp. (hereinafter Aqua), the plumbing subcontractor for the project,which employed the plaintiff.
"To recover under Labor Law § 241 (6), a plaintiff must establish the violation inconnection with construction, demolition or excavation, of an Industrial Code provision whichsets forth specific, applicable safety standards" (Wein v Amato Props., LLC, 30 AD3d 506, 507 [2006]; seeRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505 [1993]). Here, Aqua met itsprima facie burden of establishing its entitlement to judgment as a matter of law dismissing thecause of action to recover damages for violation of Labor Law § 241 (6), which waspredicated on violations of Industrial Code section 12 NYCRR 23-1.7 (d) and (e) (1) and (2).Aqua made a prima facie showing that those sections are inapplicable, as the plaintiff did not slipor trip (see Urbano v Rockefeller Ctr.N., Inc., 91 AD3d 549, 550 [2012]; Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 938[2010]; Pope v Safety & Quality Plus,Inc., 74 AD3d 1040, 1041 [2010]; Cooper v State of New York, 72 AD3d 633, 635 [2010]). Inopposition thereto, the plaintiff failed to raise a triable issue of fact. Therefore, the SupremeCourt should have granted that branch of Aqua's motion which was for summary judgmentdismissing the cause of action to recover damages for a violation of Labor Law § 241 (6).
However, the Supreme Court correctly denied that branch of Aqua's motion which was forsummary judgment dismissing the causes of action to recover damages for common-lawnegligence and a violation of Labor Law § 200. "Labor Law § 200 codifies thecommon-law duty of an owner or contractor to provide employees with a safe place to work" (Lane v Fratello Constr. Co., 52 AD3d575, 576 [2008]). "The statute applies, inter alia, to owners and contractors who eithercreated a dangerous condition or had actual or constructive notice of it" (Wein v Amato Props., LLC, 30 AD3d506, 507 [2006]). "[P]roof that a dangerous condition is open and obvious does not precludea finding of liability against a landowner for the failure to maintain the property in a safecondition but is relevant to the issue of the plaintiff's comparative negligence" (Cupo v Karfunkel, 1 AD3d 48, 52[2003]). Here, Aqua did not establish, prima facie, its entitlement to judgment as a matter of lawdismissing the causes of action to recover damages for common-law negligence and a violationof Labor Law § 200, as it failed to demonstrate that the alleged defect, deep mud, did notconstitute a dangerous condition (see Cupo v Karfunkel, 1 AD3d at 53; cf. Ulrich v Motor Parkway Props.,LLC, 84 AD3d 1221, 1222-1223 [2011]).
As the plaintiff correctly conceded in his affirmation in opposition to the motions byKnollwood and Aqua, his cause of action alleging a violation of Labor Law § 240 (1) isnot viable (see Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d at 937). Thus, theSupreme Court should have granted that branch of Aqua's motion which was for summaryjudgment dismissing that cause of action.
The Supreme Court erred in granting that branch of Knollwood's motion which was forsummary judgment on its third-party cause of action for contractual indemnification. "The rightto contractual indemnification depends upon the specific language of the contract" (Reisman v Bay Shore Union Free SchoolDist., 74 AD3d 772, 773 [2010] [internal quotation marks omitted]). Pursuant to theterms of the contractual indemnification provision at issue, Aqua is required to indemnifyKnollwood against "claims, damages, losses and expenses . . . only to the extentcaused in whole or part by negligent acts or omissions of [Aqua]." Since it has not beendemonstrated that Aqua's alleged negligence caused the plaintiff's accident, Knollwood failed toestablish its entitlement to contractual indemnification.
Aqua's remaining contentions are without merit. Skelos, J.P., Leventhal, Chambers and Lott,JJ., concur.