Opinion
2013-04-25
Kenneth VAIL, Plaintiff–Respondent, v. 1333 BROADWAY ASSOCIATES, L.L.C., et al., Defendants–Appellants, Trident Contracting Corp., et al., Defendants. 1333 Broadway Associates, L.L.C., et al., Third–Party Plaintiffs–Appellants, v. Sherry Hill Painting Corporation, Third–Party Defendant–Respondent.
McGaw, Alventosa & Zajac, Jericho (Dawn C. DeSimone of counsel), for appellants. Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for Kenneth Vail, respondent.
McGaw, Alventosa & Zajac, Jericho (Dawn C. DeSimone of counsel), for appellants. Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for Kenneth Vail, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Sherry Hill Painting Corporation, respondent.
TOM, J.P., ACOSTA, ROMÁN, FEINMAN, CLARK, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered May 14, 2012, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, and granted the motion of third-party defendant Sherry Hill Painting Corporation (Sherry Hill) for summary judgment dismissing the third-party contractual indemnification claim, unanimously affirmed, without costs.
Plaintiff was injured when he fell after the six-foot baker's scaffold upon which he was working shifted, despite the fact that he had locked the wheels; it is undisputed that the scaffold lacked guardrails. Such evidence establishes that plaintiff's injuries were proximately caused by defendants' failure to provide proper protection against the elevation-related risk ( see Zengotita v. JFK Intl. Air Term., LLC, 67 A.D.3d 426, 889 N.Y.S.2d 545 [1st Dept. 2009];Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 800 N.Y.S.2d 134 [1st Dept. 2005] ).
Given that the scaffold was inadequate in the first instance, any failure by plaintiff to hydrate himself could not be the sole proximate cause of his injuries ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003];Lajqi v. New York City Tr. Auth., 23 A.D.3d 159, 805 N.Y.S.2d 5 [1st Dept. 2005] ).
Dismissal of the contractual indemnification claim against Sherry Hill was proper, since there was no indemnification agreement in existence at the time of the accident, and nothing indicates that the terms and conditions on the back of the purchase order, which contains the indemnification clause, were to have a retroactive effect ( see Regno v. City of New York, 88 A.D.3d 610, 931 N.Y.S.2d 71 [1st Dept. 2011];Temmel v. 1515 Broadway Assoc., L.P., 18 A.D.3d 364, 365–366, 795 N.Y.S.2d 234 [1st Dept. 2005] ).
We have considered defendants' course of conduct argument and find it unavailing.