Opinion
05-23-2024
Eugene STERNKOPF, Plaintiff-Respondent, v. 395 HUDSON NEW YORK, LLC, et al., Defendants-Respondents. 395 Hudson New York, LLC, Third-Party Plaintiff-Respondent, v. James E. Fitzgerald Inc., Third-Party Defendant-Appellant, Par Fire Protection, LLC, Third-Party Defendant-Respondent, Par Plumbing Corp., et al., Third-Party Defendants. James E. Fitzgerald Inc., Second Third-Party Plaintiff-Appellant, v. ARI Products Inc., Second Third-Party Defendant-Respondent. Emmis Communications Corporation, Third Third-Party Plaintiff-Respondent, v. James E. Fitzgerald, Inc., Third Third-Party Defendant-Appellant, Par Fire Protection, LLC, et al., Third-Third Party Defendants-Respondents, Par Plumbing Corp., Third Third-Party Defendant. James E. Fitzgerald, Inc., Fourth Third-Party Plaintiff-Appellant, v. Findlay Installation Services, L.L.C. doing business as Findlay Installations, Fourth Third-Party Defendant-Respondent. Emmis Communications Corporation, Fifth Third-Party Plaintiff-Respondent, v. ARI Products, Inc., Fifth Third-Party Defendant-Respondent. Emmis Communications Corporation, Sixth Third-Party Plaintiff-Respondent. v. James Fitzgerald, Sixth Third-Party Defendant-Appellant, Par Fire Protection LLC, et al., Sixth Third-Party Defendants-Respondents, Par Plumbing Corp., et al., Sixth Third-Party Defendants. ARI Products, Inc., Seventh Third-Party Plaintiff-Respondent, v. Findlay Installation Services, LLC doing business as Findlay Installations, Seventh Third-Party Defendant-Respondent.
Cullen and Dykman LLP, New York (Erik E. Hands of counsel), for appellant. Wiese & Aydiner, PLLC, Mineola (Si Aydiner of counsel), for Eugene Sternkopf, respondent. Tyson & Mendes LLP, New York (Joshua Ferguson of counsel), for 395 Hudson New York, Emmis Communications Corporation and Emmis Radio LLC, respondents. London Fischer LLP, New York (Arthur Tergesen of counsel), for Par Fire Protection, LLC, respondent. Law Office of Nicole E. Lesperance, Elmsford (Michalina N. Shuter of counsel), for ARI Products, Inc., respondent. Law Offices of Kevin P. Westerman, Elmsford (Gregory J. Perrotta of counsel), for Findlay Installation Services, LLC, respondent.
Cullen and Dykman LLP, New York (Erik E. Hands of counsel), for appellant. Wiese & Aydiner, PLLC, Mineola (Si Aydiner of counsel), for Eugene Sternkopf, respondent.
Tyson & Mendes LLP, New York (Joshua Ferguson of counsel), for 395 Hudson New York, Emmis Communications Corporation and Emmis Radio LLC, respondents.
London Fischer LLP, New York (Arthur Tergesen of counsel), for Par Fire Protection, LLC, respondent.
Law Office of Nicole E. Lesperance, Elmsford (Michalina N. Shuter of counsel), for ARI Products, Inc., respondent.
Law Offices of Kevin P. Westerman, Elmsford (Gregory J. Perrotta of counsel), for Findlay Installation Services, LLC, respondent.
Webber, J.P., Gesmer, González, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about May 25, 2023, which, to the extent appealed from as limited by the briefs, upon reargument, modified its prior order to the extent of granting third-party defendant/third third-party defendant/sixth third-party defendant Par Fire Protection, LLC’s motion for summary judgment dismissing all direct and cross-claims against it, and granted defendant/third-party plaintiff 395 Hudson New York, LLC and defendant/third third-party plaintiff/fifth third-party plaintiff/sixth third-party plaintiff Emmis Communications Corporation and third-party defendant/sixth third-party defendant Emmis Radio, LLC’s cross-motion to the extent of granting their motion for summary judgment dismissing plaintiff’s common-law negligence and Labor Law § 200 claims against them, and, upon further consideration, clarified its prior order and granted plaintiff’s cross-motion for summary judgment on his Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(2), unanimously affirmed, without costs. Order, same court and Justice, entered on or about May 25, 2023, which, to the extent appealed from as limited by the briefs, upon reargument, denied third-party defendant/second third-party plaintiff/third third-party defendant/fourth third-party plaintiff/sixth third-party defendant James E. Fitzgerald, Inc.’s motion for summary judgment for contractual indemnification against ARI Products, Inc., unanimously affirmed, without costs.
Plaintiff was employed by Par Fire to relocate sprinkler heads at a building owned by 395 Hudson. Fitzgerald was the general contractor for the construction work and responsible for removal of debris. Fitzgerald retained Par Fire to do sprinkler work and retained ARI Products, Inc. to install carpeting.
[1] Plaintiff’s accident occurred as he was walking in a hallway at the construction site and stepped and slipped on a piece of discarded carpeting. Plaintiff was properly granted summary judgement on his Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23–1.7(e)(2). His accident was caused by stepping on debris and did not arise from performing his work duties. The discarded carpeting constituted debris that was not integral to the work being performed at the accident site (see Romano v. New York City Tr. Auth., 213 A.D.3d 506, 507–508, 184 N.Y.S.3d 323 [1st Dept. 2023]; Pereira v. New Sch., 148 A.D.3d 410, 411–412, 48 N.Y.S.3d 391 [1st Dept. 2017]).
[2, 3] Because plaintiff’s accident did not arise out of his work duties, the indemnification provision between Par Fire and Fitzgerald, which required Par Fire to indemnify Fitzgerald for liability arising out of its work, was not triggered (see Basile v. Legacy Yards Tenant LP, 205 A.D.3d 531, 531, 166 N.Y.S.3d 528 [1st Dept. 2022]; DeGidio v. City of New York, 176 A.D.3d 452, 454, 110 N.Y.S.3d 413 [1st Dept. 2019], lv dismissed and denied 35 N.Y.3d 963, 124 N.Y.S.3d 624, 147 N.E.3d 1161 [2020]). Also, Fitzgerald was not entitled to summary judgment on its indemnification claim against ARI Products, Inc. because Fitzgerald undertook to remove debris. There is an issue of fact as to whether it failed to discharge that duty and whether that violation contributed to plaintiff’s injury (see Armental v. 401 Park Ave. S. Assoc., LLC, 182 A.D.3d 405, 407, 121 N.Y.S.3d 259 [1st Dept. 2020]; Taylor v. Lehr Constr. Corp., 15 A.D.3d 242, 242–243, 788 N.Y.S.2d 855 [1st Dept. 2005]).