| Grant v City of New York |
| 2013 NY Slip Op 05986 [109 AD3d 961] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Junior Grant, Appellant-Respondent, v City ofNew York, Defendant/Third-Party Plaintiff-Respondent-Appellant. A & S Electric, Inc.,Third-Party Defendant-Respondent-Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo,Stacey L. Salvo, and Elizabeth I. Freedman of counsel), for defendant/third-partyplaintiff-respondent-appellant. Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Randy Faust and JeffreyRubinstein of counsel), for third-party defendant-respondent-appellant.
In an action to recover damages for personal injuries, the plaintiff appeals from somuch of an order of the Supreme Court, Kings County (Ash, J.), dated April 16, 2012, asdenied his motion for summary judgment on the issue of liability as to the causes ofaction alleging violations of Labor Law §§ 240 (1) and 241 (6), thedefendant/third-party plaintiff cross-appeals, as limited by its brief, from so much of thesame order as denied that branch of its cross motion which was for summary judgmentdismissing the complaint, and the third-party defendant separately cross-appeals, aslimited by its brief, from so much of the same order as denied that branch of its crossmotion which was for summary judgment dismissing the third-party cause of action forcontractual indemnification and granted that branch of the cross motion of thedefendant/third-party plaintiff which was for summary judgment on the third-party causeof action for contractual indemnification.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying the plaintiff's motion for summary judgment on the issue of liability as to thecauses of action alleging violations of Labor Law §§ 240 (1) and 241 (6)and substituting therefor a provision granting that motion, and (2) by deleting theprovision thereof denying that branch of the cross motion of the defendant/third-partyplaintiff which was for summary judgment dismissing the plaintiff's Labor Law §200 and common-law negligence causes of action, and substituting therefor a provisiongranting that branch of its cross motion; as so modified, the order is affirmed insofar asappealed and cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by thedefendant/third-party plaintiff, and one bill of costs is awarded to thedefendant/third-party plaintiff, payable [*2]by thethird-party defendant.
The plaintiff was injured when he fell from a ladder while performing electrical workat a New York City school. The plaintiff commenced this action to recover damages forpersonal injuries, asserting causes of action alleging common-law negligence andviolations of Labor Law §§ 200, 240 (1) and 241 (6). The City of New Yorkcommenced a third-party action against the plaintiff's employer, A & S Electric, Inc.(hereinafter A & S).
In order to prevail on a Labor Law § 240 (1) cause of action, the plaintiff mustestablish that the statute was violated and that the violation was a proximate cause of hisinjuries (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). Here, theplaintiff established his prima facie entitlement to judgment as a matter of law on theissue of liability on his Labor Law § 240 (1) cause of action by submittingevidence which demonstrated that he fell from an unsecured straight ladder when itshifted to the side, and that the failure to secure the ladder proximately caused his injuries(see Canas v Harbour at BluePoint Home Owners Assn., Inc., 99 AD3d 962, 963 [2012]; Melchor v Singh, 90 AD3d866, 868 [2011]; Ordonez vC.G. Plumbing Supply Corp., 83 AD3d 1021, 1022 [2011]). In opposition, theCity failed to raise a triable issue of fact. Contrary to the City's contention, the plaintiff'salleged failure to have a coworker hold the bottom of the ladder or to use an availablenylon rope to secure the bottom of the ladder to a stationary object did not raise a triableissue of fact as to whether the plaintiff's conduct was the sole proximate cause of theaccident (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563 [1993]; Kaminski v Carlyle One, 51AD3d 473, 474 [2008]; Kwang Ho Kim v D & W Shin Realty Corp., 47AD3d 616, 618-619 [2008]; Madden v Trustees of Duryea Presbyt. Church, 210AD2d 382 [1994]; cf. Serrano vPopovic, 91 AD3d 626, 627 [2012]). Thus, the Supreme Court should havegranted that branch of the plaintiff's motion which was for summary judgment on theissue of liability on his Labor Law § 240 (1) cause of action (see Canas vHarbour at Blue Point Home Owners Assn., Inc., 99 AD3d at 964; Melchor vSingh, 90 AD3d at 869-870; Ordonez v C.G. Plumbing Supply Corp., 83AD3d at 1022; Mannes v Kamber Mgt., 284 AD2d 310 [2001]).
The plaintiff also established his prima facie entitlement to judgment as a matter oflaw on the issue of liability on the cause of action alleging a violation of Labor Law§ 241 (6). Labor Law § 241 (6) imposes a nondelegable duty upon an owneror general contractor to provide reasonable and adequate protection and safety forworkers and to comply with the specific safety rules and regulations promulgated by theCommissioner of the Department of Labor (see Misicki v Caradonna, 12 NY3d 511, 515 [2009];Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]). Here, theplaintiff demonstrated his prima facie entitlement to judgment as a matter of law on thiscause of action with evidence of a violation of Industrial Code (12 NYCRR) §23-1.21 (b) (4) (iv), and that such violation was a proximate cause of his injuries. Inopposition, the City failed to raise a triable issue of fact (see Melchor v Singh, 90AD3d at 870). Thus, the Supreme Court should have granted that branch of the plaintiff'smotion which was for summary judgment on the issue of liability as to his Labor Law§ 241 (6) cause of action.
The City established its prima facie entitlement to judgment as a matter of lawdismissing the plaintiff's Labor Law § 200 and common-law negligence causes ofaction through the submission of evidence that it did not have the authority to exercisethat degree of direction and control necessary to impose liability under those causes ofaction (see Cambizaca v NewYork City Tr. Auth., 57 AD3d 701, 702 [2008]; McLeod v Corporation ofPresiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796,798 [2007]; Haider v Davis,35 AD3d 363, 364 [2006]). The plaintiff failed to oppose this branch of the City'smotion and therefore failed to raise a triable issue of fact (see Allan v DHL Express [USA],Inc., 99 AD3d 828, 832 [2012]). Therefore, the Supreme Court should havegranted that branch of the City's cross motion.
Finally, the City established its prima facie entitlement to judgment as a matter of lawon its third-party cause of action for contractual indemnification against A & S. Contraryto the contention of A & S, the subject contractual indemnification provision does notviolate General Obligations Law § 5-322.1 in that it does not require A & S toindemnify the City for the City's negligence (see Brooks v Judlau Contr., Inc., 11 NY3d 204, 208-209[2008]; Ulrich v Motor ParkwayProps., LLC, 84 AD3d 1221, 1223 [2011]). Moreover, General ObligationsLaw § 5-322.1 does not bar [*3]enforcement of acontractual indemnification provision where the indemnitee was held strictly liable underLabor Law §§ 240 (1) or 241 (6) and there was no evidence of itsnegligence (see Tapia v MarioGenovesi & Sons, Inc., 72 AD3d 800, 802 [2010]; Giangarra v Pav-Lak Contr.,Inc., 55 AD3d 869, 871 [2008]). Here, the City made a prima facie showing thatit was free from negligence, and in opposition, A & S failed to raise a triable issue of fact(see Fernandez v Abalene OilCo., Inc., 91 AD3d 906, 910 [2012]). Accordingly, the Supreme Court properlygranted that branch of the City's cross motion which was for summary judgment on itscause of action in the third-party complaint for contractual indemnification and properlydenied that branch of A & S's motion which was for summary judgment dismissing thatcause of action. Skelos, J.P., Angiolillo, Dickerson and Roman, JJ., concur.