| Mercado v Caithness Long Is. LLC |
| 2013 NY Slip Op 02005 [104 AD3d 576] |
| March 26, 2013 |
| Appellate Division, First Department |
| Gregg M. Mercado et al.,Respondents, v Caithness Long Island LLC et al., Appellants, et al., Defendant.Caithness Long Island LLC et al., Third-Party Plaintiffs-Respondents-Appellants, vFresh Meadow Power, LLC, Third-PartyDefendant-Appellant-Respondent. |
—[*1] McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for FreshMeadow Mechanical Corp., appellant. Lewis Brisbois Bisgaard & Smith LLP, New York (Peter T. Shapiro of counsel), forappellant-respondent. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), forrespondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 5,2012, which, insofar as appealed from as limited by the briefs, granted plaintiff's crossmotion for summary judgment on the issue of liability on his Labor Law § 240 (1)claim and on his Labor Law § 241 (6) claim to the extent it is predicated onIndustrial Code (12 NYCRR) § 23-1.15, granted third-party defendant FreshMeadow Power, LLC (FMP)'s cross motion for summary judgment dismissing the claimby defendants Caithness Long Island, LLC, Siemens Energy, Inc., and F&S Power, LLC(collectively, Caithness defendants) seeking common-law indemnification claim againstit, and granted FMP's cross motion for summary judgment dismissing the contractualindemnification claim to the extent any recovery by plaintiff exceeds a $1 millioninsurance [*2]policy limit, unanimously modified, on thelaw, plaintiff's cross motion for summary judgment on his Labor Law § 241 (6)claim denied, FMP's cross motion for summary judgment dismissing the claim forcontractual indemnification granted except to the extent any recovery by plaintiff exceeds$1 million, and otherwise affirmed, without costs.
Plaintiff's cross motion for partial summary judgment on his claim pursuant to LaborLaw § 240 (1) was properly granted. Plaintiff established that his injuries werecaused, at least in part, by the absence of proper protection required by the statute. Theevidence demonstrates that plaintiff, a welder who was working at a power plant that wasbeing constructed, was struck on the head by a pipe that fell from a height ofapproximately 85 to 120 feet as a result of a gap in a toeboard installed along a gratedwalkway near the top of a generator in the power plant (see Fabrizi v 1095 Ave. of theAms., L.L.C., 98 AD3d 864, 864-865 [1st Dept 2012]; Zuluaga v P.P.C. Constr.,LLC, 45 AD3d 479 [1st Dept 2007]). It is undisputed that there was no nettingto prevent objects from falling on workers and contrary to defendants' contention,plaintiff is not required to show exactly how the pipe fell, since, under any of theproffered theories, the lack of protective devices was the proximate cause of his injuries(see Augustyn v City of NewYork, 95 AD3d 683 [1st Dept 2012]). Nor is plaintiff required to show that thepipe was being hoisted or secured when it fell, since that is not a precondition to liabilitypursuant to Labor Law § 240 (1) (see Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757[2008]; Vargas v City of NewYork, 59 AD3d 261 [1st Dept 2009]).
In opposition, defendants failed to raise a triable issue of fact since they failed toshow that adequate protective devices required by Labor Law § 240 (1) wereemployed at the site. That plaintiff was wearing a welding hood but not a hard hat doesnot raise an issue of fact since "[a] hard hat is not the type of safety device enumerated inLabor Law § 240 (1) to be constructed, placed and operated, so as to give properprotection from extraordinary elevation-related risks to a construction worker" (Singhv 49 E. 96 Realty Corp., 291 AD2d 216 [1st Dept 2002]).
However, plaintiff's cross motion for partial summary judgment on his Labor Law§ 241 (6) claim should have been denied in its entirety, since there are issues offact as to whether plaintiff's comparative negligence constitutes a valid defense to thisclaim (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]; Spages v Gary Null Assoc.,Inc., 14 AD3d 425, 426 [1st Dept 2005]). Although plaintiff testified that a hardhat would not fit over his welding hood, the site safety manager testified to the contrary.The safety manager further testified that the use of fiber metal hard hats was mandatory,and that such hats were available on the site, raising an issue of fact.
Third-party defendant FMP's cross motion for summary judgment dismissing theclaim for contractual indemnification against it should have been denied, except insofaras the claim is subject to the anti-subrogation rule. Accordingly, the order is modified tocorrect what appears to have been a typographical error involving the omission of theword "except." On the merits, the claim is based on a contractual provision requiringFMP to indemnify the Caithness defendants only to the extent the accident was caused byFMP's negligence. There are triable issues of fact as to whether FMP's negligencecontributed to the accident, since plaintiff's failure to wear a hard hat can be imputed toFMP, his employer, for purposes of contractual indemnity (see Schaefer v RCPAssoc., 232 AD2d 286 [1st Dept 1996]; see also Guiga v JLS Constr. Co.,[*3]255 AD2d 244 [1st Dept 1998]).
We have considered defendants' remaining contentions and find them unavailing.Concur—Gonzalez, P.J., Sweeny, Renwick, Manzanet-Daniels and Rom�n, JJ.[Prior Case History: 2012 NY Slip Op 30854(U).]