Opinion
2280/2000.
Decided May 12, 2004.
Kelly Meenagh, Attorneys for Plaintiffs, Poughkeepsie, NY hsler Cohen, LLP, Attorneys for Defendant Mack-Cali, New York, New York.
Ahmuty, Demers McManus, Esqs., Attorneys for Third Party Defendant Palmer, H.E. Palmer Service Corp., Albertson, New York.
The underlying facts of this matter are not for the most part in dispute. However, the legal interpretations which each of the parties contend apply to these are vigorously disputed.
In short, the basic facts of this matter are that on April 18, 2000, plaintiff BRET BASHANT was employed by PALMER, which had a contract with MID-WESTCHESTER to provide heating, ventilation and air conditioning services to the premises at 11 Skyline Drive, Hawthorne, New York. MID-WESTCHESTER owned and MACK-CALI operated those premises. (These two parties will be referred to as MACK-CALI herein.)
On that date, BRET BASHANT responded to a "no heat" call initiated by tenant Planned Parenthood at those premises. He accessed the HVAC unit on the roof of the building by ascending a fixed ladder, unlatching and opening a hatchway door leading to the roof. He claims to have engaged the hatchway door to a locking mechanism which kept it open while he was on the roof. Upon examining the HVAC unit he testified that he quickly determined that there was a problem with the lock-out relay on the unit. He flipped a switch to restart the unit but stated that this was only a temporary fix and that the module had to be replaced. He claims that on starting back down the ladder he reached back to disengage the latch mechanism on the hatchway door but that before he reached it, the door collapsed, struck him on the head causing him to fall approximately thirty feet and sustain the alleged injuries.
The incident was unwitnessed by anyone other than BRET BESHANT.
As set out above, a number of motions seeking either complete or partial summary judgment have been filed, served, and are now before the Court.
At the outset, it must be recognized that on a motion for summary judgment, the Court's role is limited to issue finding, not issue determination. Kriz v. Schum, 75 NY2d 25, 33 (1989), and that the papers on the motion should be carefully scrutinized in the light most favorable to the party opposing the motion. See, Judice v. DeAngelo, 272 AD2d 583 (2d Dept., 2000). However, this does not include creating issues where none exist.
As stated in Babino v. City of New York, 234 AD2d 241 (2d Dept., 1996), citing to both Zuckerman v. City of New York, 49 NY2d 557, 562 (1980) and Huth v. Allied Maintenance Corp, 143 AD2d 634, 635 (2d Dept., 1988):
"Where the moving party has established that it is entitled to summary judgment, the party opposing the motion must demonstrate the existence of a factual issue, not mere conjecture, suspicion or speculation."
With the guidance set out above in mind, the Court turns first to Plaintiffs' cross-motion for partial summary judgment on the issue of liability on their cause of action brought pursuant to Labor Law § 240(1), and that part of PALMER's cross-motion which seeks summary judgment dismissing that cause of action. MACK-CALI has not moved for summary judgment as to this cause of action but opposes plaintiffs' cross-motion. On the basis of the submissions before the Court, both of these motions must be denied.
In the first instance, this Court finds that plaintiff BRET BASHANT was engaged in repair activities at the time of the incident and that Labor Law § 240(1) applies. He had responded to a "no heat" call, and had made a temporary repair to the HVAC Unit and was going back down the ladder after doing so. The fact that the temporary repair was made quickly does not change it from a repair to regular maintenance. The unit was inoperable before he performed the temporary repair and this is sufficient for the statute to apply. See, Izrailev v. Ficarra Furniture of Long Island, Inc., 70 NY2d 813 (1987); Caraciolo v. 800 Second Avenue Condominium, 294 AD2d 200 (1st Dept., 2002); Craft v. Clark Trading Corporation, 257 AD2d 886 (3d Dept., 1999); and Crosse TT v. Charles Schofell, 256 AD2d 881 (3d Dept., 1998).
However, the fact that plaintiff BRET BASHANT fell from a ladder is not, by itself, sufficient to impose liability under Labor Law § 240(1). Where, as here, there is no evidence that the ladder itself was defective, questions of fact exist as to whether it provided proper protection or whether BRET BASHANT should have been provided with additional safety devices. See, Taglioni v. Harbor Cove Associates, 308 AD2d 441 (2d Dept., 2003); Pionteck v. Huntington Public Library, 306 AD2d 334 (2d Dept., 2003); and Olberding v. Dixie Contracting, Inc., 302 AD2d 574 (2d Dept., 2003).
Therefore, the cross-motion of plaintiffs for partial summary judgment on the issue of liability on their Labor Law § 240(1) cause of action, and the cross-motion of PALMER for summary judgment dismissing that cause of action, are both denied.
However, this Court finds that the part of MACK-CALI's cross-motion which seeks dismissal of the third through eighth causes of action in plaintiffs' amended complaint which seek damages based upon violations of Labor Law § 241(6) and 200, as well as common law negligence should be granted.
With regard to Labor Law § 241(6), the Court of Appeals has held that its protections are afforded only to plaintiffs who are performing repair work "in the context of construction, demolition and excavation" of a building or structure. Nagel v. D R Realty Corp, 99 NY2d 98, 103 (2002). Such clearly was not the case herein so plaintiffs' causes of action based upon that statute must be dismissed. See also, Reger v. Harry's Harbour Place Grill, Inc., ___ AD3d ___, 773 NYS2d 689 {5 AD3d 1065} (4th Dept., 2004) and Esposito v. New York City Industrial Development Agency, 305 AD2d 108 (1st Dept., 2003), affirmed, 1 NY3d 526 (2003).
Nor can plaintiffs' causes of action based upon Labor Law § 200 or common law negligence stand. As recently stated in Miller v. Shah , 3 AD3d 521 , 522-523 (2d Dept., 2004):
"Furthermore, for an owner to be held liable pursuant to Labor Law § 200 or for common law negligence, a plaintiff must show that the owner supervised or controlled the work, or had actual or constructive notice of the unsafe condition which caused the accident (citations omitted)."
Plaintiffs have failed to put forth sufficient evidentiary claims which are neither speculative nor conclusory which could serve to defeat MACK-CALI's cross-motion for summary judgment as to these causes of action. They are, therefore, also dismissed.
This brings us, finally, to PALMER's motion for summary judgment seeking to dismiss MACK-CALI's third party complaint in its entirety and that part of MACK-CALI's cross-motion for partial summary judgment on the First Cause of Action in its Third Party Complaint against PALMER seeking a finding holding PALMER in breach of a contractual indemnity, hold harmless and payment of defense fees, cost and expenses agreement.
For the reasons that follow, PALMER's motion must be denied and MACK-CALI's cross-motion granted.
As set forth above, this Court has found that MACK-CALI was entitled to dismissal of plaintiffs' claims against it brought pursuant to Labor Law § 241(6), 200, and principles of common law negligence. This leaves only plaintiffs' Labor Law § 240(1) claim in the action. The Courts of this state have consistently held that General Obligations Law § 5-322.1 does not bar the enforcement of an indemnification contract where the indemnitee is held strictly liable under Labor Law § 240(1) and there is no evidence of its negligence. Brown v. Two Exchange Plaza, 76 NY2d 172 (1990); Lazzaro v. MJM Industries, Inc., 288 AD2d 440 (2d Dept., 2001); Tworek v. Mutual Housing Ass'n of NY, Inc., 279 AD2d 469 (2d Dept., 2001); Kennelty v. Darlind Construction, Inc., 260 AD2d 443 (2d Dept., 1999); and Buccini v. Marine Construction, Inc., 250 AD2d 466 (1st Dept., 1998).
Based upon the submissions of the parties, MACK-CALI has established its entitlement to summary judgment against PALMER on its First Cause of Action based upon contractual indemnification, and its motion for such relief is granted.
PALMER's motion for summary judgment dismissing MACK-CALI's Third Party Complaint in its entirety is denied.
Counsel are directed to appear before this Court for a status conference on June 14, 2004 at 10:00 a.m.
The foregoing constitutes the decision and order of the Court.