Summary
holding that disassembly of a temporary exhibit at an expo was demolition under § 240
Summary of this case from Agate v. City of New YorkOpinion
Argued January 31, 2000
March 17, 2000
In an action to recover damages for personal injuries, the third-party defendant, Andersen Windows, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered January 6, 1999, as (a) granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on his cause of action under Labor Law § 240 Lab.(1) and (b) denied its cross motion for summary judgment dismissing the third-party complaint and, upon searching the record, granted summary judgment in favor of the defendant third-party plaintiff Expositions, Inc., and against it on the issue of indemnification, and the defendant third-party plaintiff, Expositions, Inc., cross-appeals from so much of the same order as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on his cause of action under Labor Law § 240 Lab.(1) and denied that branch of its cross motion which was for summary judgment dismissing that cause of action.
Peltz Walter, New York, N.Y. (Steven M. Silverman of counsel), for third-party defendant appellant-respondent.
L'Abbate, Balkan, Colavita Contini, LLP, Garden City, N Y (Matthew K. Flanagan of counsel), for defendant third-party plaintiff respondent-appellant.
Martin Molinari, LLP, Freeport, N.Y. (John E. Molinari of counsel), for respondent.
GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, DANIEL F. LUCIANO, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the respondent.
The plaintiff was injured while dismantling an exhibit owned by the third-party defendant, Andersen Windows, Inc. (hereinafter Andersen), which stood in the Nassau Veterans Memorial Coliseum (hereinafter the Coliseum) during the "Home Improvement Energy Expo". The Coliseum had been leased by the defendant, Expositions, Inc. (hereinafter Expositions), for the event, and it in turn rented space to, among others, Andersen.
The injured plaintiff established a prima facie case entitling him to summary judgment on his cause of action pursuant to Labor Law § 240 Lab.(1). He presented undisputed evidence that, while dismantling the Andersen exhibit, he fell when an unsecured ladder upon which he was standing and which had no protective rubber skids, slipped from underneath him (see, Dedes v. Cambria, 258 A.D.2d 495; Kinsler v. Lu-Four Assocs., 215 A.D.2d 631, 632; Lopez v. 36-2nd J Corp., 211 A.D.2d 667, 668; Allstadt v. Long Is. Home, 210 A.D.2d 365). Expositions failed to raise a triable issue of fact that the plaintiff's injuries were caused by anything other than the unsecured ladder (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555; Allstadt v. Long Is. Home, supra). Furthermore, Expositions' contention that it was not an owner under the statute is controverted by the record which reveals that Expositions was the lessee of the Coliseum at the time of the accident (see,Buonassisi v. Sears, Roebuck Co., 43 A.D.2d 701, 702; cf., Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99).
Andersen contends that its exhibit did not constitute a "structure" under Labor Law § 240 Lab.(1). The exhibit, however, which was composed of interlocking parts, clearly falls within the definition of structure as a "piece of work artificially built up or composed of parts joined together in some definite manner" (Lombardi v. Stout, 80 N.Y.2d 290, 295).
Finally, the Supreme Court properly determined that Expositions was entitled to contractual indemnification from Andersen. The unsigned "Exhibitor' s Manual", which contained the subject indemnity provision, was expressly incorporated into the contract signed by Andersen, and the two documents clearly referred to the same subject matter, i.e., the leasing of space for Andersen's exposition display (see, Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 55).
MANGANO, P.J., BRACKEN, LUCIANO, and SMITH, JJ., concur.