Opinion
2012-12-13
Guillermo PICASO, Plaintiff–Respondent, v. 345 EAST 73 OWNERS CORP., et al., Defendants/Third–Party Plaintiffs–Respondents, v. Tower Building Services, Inc., Third–Party Defendant–Appellant.
Goldberg Segalla, LLP, White Plains (William T. O'Connell of counsel), for appellant. Levine and Grossman, Mineola (Scott D. Rubin of counsel), for Guillermo Picaso, respondent.
Goldberg Segalla, LLP, White Plains (William T. O'Connell of counsel), for appellant.Levine and Grossman, Mineola (Scott D. Rubin of counsel), for Guillermo Picaso, respondent.
Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for 345 East 73 Owners Corp. and Goodstein Management, Inc., respondents.
, J.P., SWEENY, MOSKOWITZ, RENWICK, CLARK, JJ.
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered on or about April 14, 2011, which, to the extent appealed from, granted defendants 345 East 73 Owners Corp. and Goodstein Management, Inc.'s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action, and denied third-party defendant Tower Building Services, Inc.'s motion for summary judgment dismissing the common-law indemnification claim, and order, same court and Justice, entered January 12, 2012, which, to the extent appealed from, upon reargument, conditionally granted defendants' motion for summary judgment on their contractual indemnification claim, unanimously reversed, on the law, without costs, defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims denied, Tower's motion for summary judgment dismissing the common-law indemnification claim granted, and defendants' motion for summary judgment on the contractual indemnification claim denied.
Plaintiff's Labor Law § 200 and common-law negligence claims should not be dismissed since defendants failed to demonstrate that they lacked notice of a hazardous condition that allegedly caused plaintiff to trip and fall on a staircase in the building they owned and managed ( see Griffin v. New York City Tr. Auth., 16 A.D.3d 202, 791 N.Y.S.2d 98 [1st Dept.2005] ). A manager for defendant owners corporation testified that he performed daily inspections of staircases in the building to determine whether there were any defects requiring repairs. In light of these regular inspections and plaintiff's testimony that he noticed the defective condition of the step two weeks before the accident occurred, triable issues of fact exist whether defendants had constructive notice of the condition ( see Vidor v. 6 Jones St. Assoc., LLC, 85 A.D.3d 449, 924 N.Y.S.2d 387 [1st Dept.2011] ).
Tower may not be held liable for common-law indemnification of defendants since plaintiff does not allege, nor does his bill of particulars evince, a “grave injury” within the meaning of Workers' Compensation Law § 11 ( see Meis v. ELO Org., 97 N.Y.2d 714, 740 N.Y.S.2d 689, 767 N.E.2d 146 [2002] ).
Contrary to defendants' contention, the contractual indemnification provision on which they rely contains no language limiting indemnification to damages arising from accidents caused by Tower's negligence, or precluding indemnification for damages caused by their own negligence ( see Hernandez v. Argo Corp., 95 A.D.3d 782, 783–784, 945 N.Y.S.2d 662 [1st Dept.2012] ). Thus, if it is found that plaintiff's injuries are attributable to any negligence on their part, enforcement of the indemnification provision will be barred by General Obligations Law § 5–322.1 ( see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 658 N.Y.S.2d 903, 680 N.E.2d 1200 [1997] ), and the conditional grant of summary judgment to defendants on their contractual indemnification claim against Tower is premature ( compare Colozzo v. National Ctr. Found., Inc., 30 A.D.3d 251, 817 N.Y.S.2d 256 [1st Dept.2006]; Aarons v. 401 Hotel, L.P., 12 A.D.3d 293, 294, 785 N.Y.S.2d 73 [1st Dept.2004] ).