Opinion
17345 Index Nos. 160171/18 595211/19 Case No. 2022–01557
02-16-2023
Christian Burgos CABA, Plaintiff–Respondent, v. 587–91 THIRD OWNER, LLC, et al., Defendants–Appellants. 587–91 Third Owner, LLC, et al., Third–Party Plaintiffs–Appellants, v. OV Painting and Supply, Inc., Third–Party Defendant–Respondent.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellants. Law Offices of Altagracia Nunez, P.C., New York (Jason A. Richman of counsel), for Christian F. Burgos Caba, respondent. Barry McTiernan & Moore LLC, New York (Steven Aripotch of counsel), for OV Painting and Supply, Inc., respondent.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellants.
Law Offices of Altagracia Nunez, P.C., New York (Jason A. Richman of counsel), for Christian F. Burgos Caba, respondent.
Barry McTiernan & Moore LLC, New York (Steven Aripotch of counsel), for OV Painting and Supply, Inc., respondent.
Renwick, J.P., Oing, Mendez, Rodriguez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (James D'Auguste, J.), entered on or about March 11, 2022, which granted plaintiff's motion for summary judgment as to liability with respect to his Labor Law § 240(1) cause of action and denied the motion of defendants/third-party plaintiffs 587–91 Third Owner, LLC and CM Associates Construction Management, LLC (together, defendants) for summary judgment dismissing the complaint, or, in the alternative, for summary judgment on their contractual indemnification claim against third party defendant OV Painting and Supply, Inc., unanimously affirmed, without costs.
While plaintiff was working at a building owned by defendant 587–91 Third Owner, his foreman told him to help bring a heavy spray paint machine from the 10th floor down to the 9th floor. According to plaintiff, only one of the two site elevators was available, and after he and the foreman waited for the available elevator for around 30 minutes, the foreman told him to help move the machine down the stairway by holding the front of the machine. Plaintiff walked backwards down the stairs while holding the machine with both hands, and therefore could not see the steps. As he and the foreman moved the machine down the stairs, that admittedly were not defective, plaintiff missed a step, causing him to fall down 13 steps and onto the landing below.
Plaintiff established his entitlement to judgment as a matter of law as to liability on his Labor Law § 240(1) cause of action. Because plaintiff's foreman directed him to work on an elevated work platform—namely, the stairway—defendants were required to provide plaintiff with an adequate safety device for the task of carrying the paint machine down the stairs (see Conlon v. Carnegie Hall Socy., Inc., 159 A.D.3d 655, 655, 70 N.Y.S.3d 833 [1st Dept. 2018] [stairway where plaintiff directed to work an elevated work platform]). No party disputes that defendants failed to do so, and the absence of a safety device was the direct cause of plaintiff's injury ( id. ). For the same reason, Supreme Court properly denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim. This determination renders academic plaintiff's Labor Law §§ 241(6) and 200 claims as applied to him (see Cronin v. New York City Tr. Auth., 143 A.D.3d 419, 420, 38 N.Y.S.3d 544 [1st Dept. 2016] ).
As to defendants’ motion for summary judgment on their contractual indemnification claim against OV Painting, Supreme Court correctly denied that motion as premature (see Cackett v. Gladden Props., LLC, 183 A.D.3d 419, 422, 123 N.Y.S.3d 581 [1st Dept. 2020] ). Issues of fact remain as to whether defendants were negligent and whether they exercised supervision or control over the injury-producing work ( id. ; see Lemache v. MIP One Wall St. Acquisition, LLC, 190 A.D.3d 422, 423–424, 139 N.Y.S.3d 185 [1st Dept. 2021] ).
We have considered defendants’ remaining arguments and find them unavailing.