| Susko v 337 Greenwich LLC |
| 2013 NY Slip Op 00793 [103 AD3d 434] |
| February 7, 2013 |
| Appellate Division, First Department |
| Robert Susko et al., Respondents, v 337Greenwich LLC et al., Appellants, and Magnetic Construction Group Corp., Respondent.(And a Third-Party Action.) 377 Greenwich LLC et al., Second Third-PartyPlaintiffs-Appellants, v K&M Plaster, Inc., Second Third-PartyDefendant. |
—[*1] Gurfein & Douglas LLP, New York (Preston J. Douglas of counsel), for Suskorespondents. Harrington, Ocko & Monk, LLP, White Plains (Adam Greenberg of counsel), forMagnetic Construction Group Corp., respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 3,2012, which, insofar as appealed from, as limited by the briefs, granted plaintiffs' motionfor partial summary judgment on the Labor Law § 240 (1) claim as againstdefendant 337 Greenwich LLC (377 Greenwich), denied 377 Greenwich's cross motionfor summary judgment dismissing the common-law negligence and Labor Law§§ 200, 240 (1) and 241 (6) claims as against it, granteddefendant/third-party plaintiff Magnetic Construction Group Corp.'s (Magnetic) crossmotion for summary judgment dismissing the common-law negligence and Labor Law§ 200 claims against it, and denied 377 Greenwich's cross motion for summaryjudgment on its common-law and contractual indemnification and breach of contractclaims against Magnetic, unanimously affirmed, without costs.
Plaintiffs made a prima facie showing that 377 Greenwich failed to provide theinjured [*2]plaintiff with an adequate scaffold, which is asafety device under Labor Law § 240 (1), and that as a consequence, he fell andinjured himself. It is unrefuted that during an ongoing construction project, plywoodsheeting was placed over the planks on the scaffold and that, in one area, there were twoplanks missing beneath the plywood. The scaffolding law mandates that owners andcontractors provide safety devices which shall be so constructed, placed and operated asto give proper protection to persons performing work covered by the statute (Labor Law§ 240 [1]). 377 Greenwich had a nondelegable, statutory duty to ensure that thescaffold in use by plaintiff during the course of this construction project was an effectiveand stable safety device (Schultze v 585 W. 214th St. Owners Corp., 228 AD2d381, 381 [1st Dept 1996], citing Gordon v Eastern Ry. Supply, 82 NY2d 555,560-562 [1993]). Since preventing a worker from falling is a core objective of thestatute, plaintiff established a violation of section 240 (1) as a matter of law (Montalvo v J. Petrocelli Constr.,Inc., 8 AD3d 173, 175 [1st Dept 2004]).
Although 377 Greenwich argues that the planks were improperly removed, orpossibly even stolen, by the employees of another contractor, no facts are presented fromwhich to conclude that this was an extraordinary and/or unanticipated intervening act thatconstituted a superceding cause for plaintiff's injuries (cf. Montgomery v Federal ExpressCorp., 4 NY3d 805 [2005]). 377 Greenwich's principal testified that he wasaware that other subcontractors on the site were moving and removing construction toolsand materials. 377 Greenwich's characterization of the removal of the planks as a "theft"is entirely speculative and, even if true, does not convert this foreseeable event into asuperceding intervening cause (Steinberg v New York City Tr. Auth., 88 AD3d 582 [1stDept 2011]).
The motion court also correctly determined that the medical records did not create anissue of fact about whether plaintiff actually fell from a scaffold. There is overwhelmingevidence, physical as well as testimonial, from both interested and non-interestedwitnesses, that plaintiff fell from the scaffold. Assuming the physician's assistant at St.Vincent's hospital (who admitted she was unfamiliar with the term "scaffolding")correctly transcribed plaintiff's statement as, "I twisted my ankle coming off the truck,"this lone, uncorroborated statement is not sufficient to raise an issue of fact. Indeed, evenif the statement is true, it is well established law that "[t]here may be more than oneproximate cause of a workplace accident" (Pardo v Bialystoker Ctr. & BikurCholim, 308 AD2d 384, 385 [1st Dept 2003]).
The motion court correctly refused to dismiss the Labor Law § 241 (6) claimagainst 377 Greenwich. Although Industrial Code (12 NYCRR) § 23-5.1 (c) isinsufficiently specific to support a Labor Law § 241 (6) claim, 377 Greenwichfailed to establish that the scaffolding planks complied with Industrial Code (12NYCRR) § 23-5.1 (e), which is a proper predicate for a Labor Law § 241(6) claim (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,501-502 [1993]). The latter code provision requires, among other things, that scaffoldingplanks be of a specified width (§ 23-5.1 [e] [5]) and "laid tight" (§ 23-5.1 [e][1]).
377 Greenwich cross moved to dismiss plaintiff's Labor Law § 200 andcommon-law negligence claims on the sole ground of lack of notice. Any references inthe cross motion to supervision were raised only in connection with relief requested byand against codefendant Magnetic. Plaintiff restricted his arguments only to those raisedin 377 Greenwich's limited cross motion. Consequently, to the extent this accidentinvolves the methods or materials used by plaintiff at the work place, 377 Greenwichnever made out a prima facie case entitling it to summary judgment dismissing the LaborLaw § 200 and common-law negligence causes of [*3]action (see generally Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; see also Raffa v City of New York, 100 AD3d 558 [1stDept 2012]).
The construction agreement relied on by both 377 Greenwich and Magnetic isunsigned and replete with editorial markings. It does not clearly and unambiguouslyobligate Magnetic to indemnify the owner, 377 Greenwich (see Tonking v Port Auth. of N.Y.& N.J., 3 NY3d 486, 490 [2004]). Therefore, the motion court properly denied377 Greenwich's cross motion against Magnetic for contractual indemnification.
The motion court also properly denied 377 Greenwich's cross motion forcommon-law indemnification against Magnetic, since 377 Greenwich failed to show thatplaintiff's accident was caused by Magnetic's negligence (see Correia v ProfessionalData Mgt., 259 AD2d 60, 65 [1st Dept 1999]). Similarly the motion court properlydismissed the Labor Law § 200 and common-law negligence claims againstMagnetic as there is no evidence that Magnetic, assumed authority over plaintiff's workor exercised the requisite degree of supervision and control over the work to hold it liable(Hughes v Tishman Constr.Corp., 40 AD3d 305, 306 [1st Dept 2007]).
As to its breach of contract claim against Magnetic, 377 Greenwich failed to identifyin its original motion papers the precise contractual provision requiring Magnetic toname it as an additional insured (see Bryde v CVS Pharmacy, 61 AD3d 907, 909 [2d Dept2009]). The issue, therefore, remains for trial. Concur—Saxe, J.P., Renwick,Freedman, Rom�n and Gische, JJ. [Prior Case History: 2012 NY Slip Op30836(U).]