| Van Nostrand v Race & Rally Constr. Co., Inc. |
| 2014 NY Slip Op 00651 [114 AD3d 664] |
| February 5, 2014 |
| Appellate Division, Second Department |
| Robert Van Nostrand, Respondent, v Race & RallyConstruction Co., Inc., Defendant/Third-Party Plaintiff-Respondent-Appellant, CarrierNortheast et al., Respondents, and MCN Distributors, Inc., Appellant-Respondent.Master Mechanical Corp., Third-PartyDefendant-Respondent. |
—[*1] Gallo Vitucci & Klar, LLP, New York, N.Y. (Kimberly A. Ricciardi and WilliamParra of counsel), for defendant/third-party plaintiff-respondent-appellant. Cartier, Bernstein, Auerbach & Dazzo, P.C., Patchogue, N.Y. (Aileen R. Kavanaghof counsel), for plaintiff-respondent. Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Dennis S. Heffernan of counsel), forthird-party defendant-respondent.
In a consolidated action to recover damages for personal injuries, the defendantMCN Distributors, Inc., appeals, as limited by its brief, (1) from so much of an order ofthe Supreme Court, Suffolk County (Pines, J.), dated January 3, 2012, as denied thosebranches of its motion which were for summary judgment dismissing the causes of actionalleging common-law negligence and a violation of Labor Law § 200 insofar asasserted against it, and (2) from so much of an order of the same court dated June 19,2012, as denied its motion for leave to reargue those branches of its prior motion whichwere for summary judgment dismissing the causes of action alleging common-lawnegligence and a violation of Labor Law § 200 insofar as asserted against it, andthe defendant/third-party plaintiff cross-appeals, as limited by its brief, from so much ofthe order dated January 3, 2012, as denied those branches of its motion which were forsummary judgment dismissing the causes of action alleging common-law negligence, aviolation of Labor Law § 200, and a violation of Labor Law § 241 (6)insofar as predicated on alleged violations of 12 NYCRR 23-8.1 (f) and 23-8.2 (c), andall cross claims, insofar as asserted against it, and for conditional summary judgment onits third-party causes of action for contractual and common-law indemnification.
Ordered that the appeal by the defendant MCN Distributors, Inc., from the orderdated June 19, 2012, is dismissed, as no appeal lies from an order denying leave toreargue; and it is further,[*2]
Ordered that the order dated January 3, 2012, ismodified, on the law, (1) by deleting the provision thereof denying that branch of themotion of the defendant MCN Distributors, Inc., which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 200 insofar asasserted against it, and substituting therefor a provision granting that branch of thatmotion, and (2) by deleting the provisions thereof denying those branches of the motionof the defendant/third-party plaintiff which were for summary judgment dismissing thecauses of action alleging common-law negligence, a violation of Labor Law § 200,and a violation of Labor Law § 241 (6) insofar as predicated on an allegedviolation of 12 NYCRR 23-8.1 (f), and all cross claims, insofar as asserted against it, andfor conditional summary judgment on its third-party causes of action for contractual andcommon-law indemnification, and substituting therefor provisions granting thosebranches of that motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant/third-party plaintiff,payable by the plaintiff and the third-party defendant.
The plaintiff, who was employed by the third-party defendant, Master MechanicalCorp. (hereinafter Master), was working at a site where a six-story residential buildingwas under construction. Master was a subcontractor for the project. Thedefendant/third-party plaintiff, Race & Rally Construction Co., Inc. (hereinafter R&R),was the general contractor for the project, and the defendants Carrier Northeast(hereinafter Carrier), Penske Logistics, Inc. (hereinafter Penske), and MCN Distributors,Inc. (hereinafter MCN), were subcontractors hired in connection with the installation ofair conditioning equipment in the building. Carrier was hired to supply air conditioningequipment, Penske to transport the equipment to the site, and MCN to provide a crane tolift the equipment to the roof of the building.
The plaintiff testified at his deposition that, during the unloading of air conditionercondensers from a delivery truck, one of the pallets on which the condensers werepositioned became stuck under rails on the side of the truck. He testified that the truckdriver and the crane operator asked him to position a pallet jack under the stuck palletwhile the driver used a steel bar to pry back the side rail and the crane operator used thecrane to put tension on the pallet. The plaintiff further testified that, when the plan wasput into action, the pallet and pallet jack moved toward him with enough force to knockhim off the back of the truck, allegedly causing injury. The plaintiff commenced actions,which were subsequently consolidated, to recover damages for personal injuries, allegingcommon-law negligence and violations of Labor Law §§ 200, 240 (1) and241 (6). R&R commenced a third-party action against Master. MCN and R&R separatelymoved, inter alia, for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against each of them. The Supreme Court, among other things, deniedthose branches of their respective motions which were for summary judgment dismissingthe causes of action alleging common-law negligence and violations of Labor Law§ 200 insofar as asserted against each of them. The Supreme Court also denied thatbranch of R&R's motion which was for summary judgment dismissing the cause ofaction alleging violations of Labor Law § 241 (6) insofar as predicated on allegedviolations of 12 NYCRR 23-8.1 (f) and 23-8.2 (c), insofar as asserted against R&R. Inaddition, the Supreme Court denied those branches of R&R's motion which were forsummary judgment dismissing all cross claims insofar as asserted against it and forconditional summary judgment on its third-party causes of action for contractual andcommon-law indemnification against Master.
The Supreme Court erred in denying that branch of MCN's motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law§ 200 insofar as asserted against it. Labor Law § 200 liability cannot beassessed against a subcontractor who did not supervise or control the work that causedthe plaintiff's injury (see Porackiv St. Mary's R.C. Church, 82 AD3d 1192, 1195 [2011]; Tomyuk v Junefield Assoc., 57AD3d 518, 521 [2008]). MCN demonstrated its prima facie entitlement to judgmentas a matter of law by presenting evidence that it was a subcontractor which did notsupervise or control the plaintiff's work. In opposition, the plaintiff failed to raise atriable issue of fact.
However, the Supreme Court properly denied that branch of MCN's motion which[*3]was for summary judgment dismissing the cause ofaction alleging common-law negligence insofar as asserted against it. A subcontractormay be held liable for negligence where the work it performed created the condition thatcaused the plaintiff's injury, even if it did not possess any authority to supervise orcontrol the plaintiff's work or work area (see Ortiz v I.B.K. Enters., Inc., 85 AD3d 1139, 1140[2011]; Poracki v St. Mary's R.C. Church, 82 AD3d at 1195). In response toMCN's prima facie showing with respect to this cause of action, the plaintiff raised atriable issue of fact as to whether MCN's employee created an unreasonable risk of harmthat was a proximate cause of the plaintiff's injuries (see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 523[2010]; Tomyuk v Junefield Assoc., 57 AD3d at 521; Kelarakos v Massapequa WaterDist., 38 AD3d 717, 718-719 [2007]).
The Supreme Court erred in denying those branches of R&R's motion which werefor summary judgment dismissing the causes of action alleging common-law negligenceand a violation of Labor Law § 200 insofar as asserted against it. Here, theplaintiff's claim arises out of the means and methods of the work, and R&R establishedits prima facie entitlement to judgment as a matter of law by demonstrating that it did notsupervise or control the performance of the work that led to the plaintiff's injuries (see Ferreira v City of NewYork, 85 AD3d 1103, 1106 [2011]). In opposition, the plaintiff failed to raise atriable issue of fact. General supervisory authority for the purpose of overseeing theprogress of the work is insufficient to impose liability (see La Veglia v St. FrancisHosp., 78 AD3d 1123, 1125 [2010]). The Supreme Court also erred in denyingthat branch of R&R's motion which was for summary judgment dismissing all crossclaims insofar as asserted against it (cf. Poracki v St. Mary's R.C. Church, 82AD3d at 1196).
The Supreme Court properly denied that branch of R&R's motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law§ 241 (6) insofar as predicated on 12 NYCRR 23-8.2 (c) insofar as asserted againstit. In response to R&R's prima facie showing, the plaintiff raised a triable issue of fact asto whether 12 NYCRR 23-8.2 (c) (3), which is designed to protect workers from hazardscreated by the horizontal movement of a load being hoisted by a crane (see McCoy v Metropolitan Transp.Auth., 38 AD3d 308, 310 [2007]), was applicable to the facts herein and, if so,as to whether it was violated. However, the Supreme Court erred in denying that branchof R&R's motion which was for summary judgment dismissing the cause of actionalleging a violation of Labor Law § 241 (6) insofar as predicated on 12 NYCRR23-8.1 (f), insofar as asserted against it, since, in response to R&R's prima facie showing,the plaintiff failed to raise a triable issue of fact as to the applicability of that provision ofthe Industrial Code.
The Supreme Court should have granted that branch of R&R's motion which was forconditional summary judgment on its third-party cause of action for contractualindemnification against Master. "A court may render a conditional judgment on the issueof contractual indemnity, pending determination of the primary action so that theindemnitee may obtain the earliest possible determination as to the extent to which he orshe may expect to be reimbursed" (Jamindar v Uniondale Union Free School Dist., 90 AD3d612, 616 [2011]). "To obtain conditional relief on a claim for contractualindemnification, the one seeking indemnity need only establish that it was free from anynegligence and [may be] held liable solely by virtue of . . . statutory [orvicarious] liability" (id. at 616 [internal quotation marks omitted]). According tothe plain language of R&R's subcontract with Master, R&R is entitled to indemnificationfrom Master in the event the plaintiff's injuries were caused by negligent acts oromissions of Master or its subcontractors. R&R demonstrated, prima facie, that it wasfree from negligence in the happening of the accident and that it was subject only tostatutory or vicarious liability. In opposition, Master failed to raise a triable issue of fact.
Finally, the Supreme Court should have granted that branch of R&R's motion whichwas for conditional summary judgment on its third-party cause of action for common-lawindemnification against Master (see Hart v Commack Hotel, LLC, 85 AD3d 1117,1118-1119 [2011]).
To the extent MCN raises an argument on appeal regarding that branch of its motionwhich was for summary judgment dismissing all cross claims insofar as asserted againstit, that branch of its motion was not addressed by the Supreme Court, and, thus, remainspending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]).Dickerson, J.P., Hall, Cohen and Miller, JJ., concur. [Prior Case History: 34 Misc 3d1213(A), 2012 NY Slip Op 50066(U).]