Opinion
15209-15209A Index No. 306800/12E Case Nos. 2020-04814, 2021-01917
02-03-2022
Michael GUTIERREZ, Plaintiff–Respondent, v. TURNER TOWERS TENANTS CORP. et al., Defendants–Appellants, Triborough Scaffolding & Hoisting, Defendant–Respondent, Site Safety, LLC et al., Defendants. JVS Exteriors Inc., Third–Party Plaintiff–Appellant, v. Pofi Construction Company, Third–Party Defendant–Respondent.
Fern Flomenhaft PLLC, New York (Christopher G. Keane of counsel), for appellants. Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for Michael Gutierrez, respondent. Kiernan Trebach, LLP, Garden City (Thomas E. Fogarty of counsel), for Triborough Scaffolding & Hoisting, respondent. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Pofi Construction Company, respondent.
Fern Flomenhaft PLLC, New York (Christopher G. Keane of counsel), for appellants.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for Michael Gutierrez, respondent.
Kiernan Trebach, LLP, Garden City (Thomas E. Fogarty of counsel), for Triborough Scaffolding & Hoisting, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Pofi Construction Company, respondent.
Kapnick, J.P., Mazzarelli, Gesmer, Kennedy, Pitt, JJ.
Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered on or about May 19, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim against defendants Turner Towers Tenant Corp. (Turner) and JVS Exteriors Inc. (JVS), denied Turner and JVS's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and summary judgment on the claim against third-party defendant Pofi Construction Company (Pofi) for contractual indemnification and their cross claims against defendant Triborough Scaffolding & Hoisting (Triborough) for contribution and common-law indemnification, granted Triborough's motion for summary judgment dismissing Turner and JVS's cross claims, and granted Pofi's motion for summary judgment dismissing the third-party claim, unanimously modified, on the law, to deny Triborough's motion, and otherwise affirmed, without costs. Order, same court (Doris M. Gonzalez, J.), entered May 11, 2021, which denied Turner and JVS's motion to renew their motion for summary judgment on the contractual indemnification claim against Pofi, unanimously affirmed, without costs.
Plaintiff was injured when he fell from a sidewalk bridge after stepping on a rotted wood plank that broke beneath him. These facts demonstrate a prima facie violation of Labor Law § 240(1) by owner Turner and general contractor JVS (see Serrano v. TED Gen. Contr., 157 A.D.3d 474, 474, 67 N.Y.S.3d 620 [1st Dept. 2018] ; Barraco v. First Lenox Terrace Assoc., 25 A.D.3d 427, 428, 810 N.Y.S.2d 8 [1st Dept. 2006] ). Regardless of whether plaintiff's accident occurred when he was walking across the sidewalk bridge, as he testified, or stepping onto the rotted plank from the ladder he climbed to get to the top of the bridge, as described in the accident report, the plank he stepped on broke, and he had not been provided with a safety device to protect him from falling (see Sotarriba v. 346 W. 17th St. LLC, 179 A.D.3d 599, 600, 118 N.Y.S.3d 90 [1st Dept. 2020] ; Augustyn v. City of New York, 95 A.D.3d 683, 684, 944 N.Y.S.2d 146 [1st Dept. 2012] ).
That the accident was unwitnessed does not bar summary judgment in plaintiff's favor, as there is nothing in the record that contradicts plaintiff's version of the accident or raises an issue as to his credibility ( Serrano, 157 A.D.3d at 474, 67 N.Y.S.3d 620 ). Nor do plaintiff's criminal convictions alone raise an issue regarding his credibility (see Marrero v. 2075 Holding Co. LLC, 106 A.D.3d 408, 410, 964 N.Y.S.2d 144 [1st Dept. 2013] ).
In light of Turner and JVS's statutory violation, plaintiff cannot be the sole proximate cause of his accident (see Romanczuk v. Metropolitan Ins. & Annuity Co., 72 A.D.3d 592, 592–593, 899 N.Y.S.2d 228 [1st Dept. 2010] ; Kielar v. Metropolitan Museum of Art, 55 A.D.3d 456, 458, 866 N.Y.S.2d 629 [1st Dept. 2008] ). Any conduct on plaintiff's part would constitute comparative negligence, which is not a defense to a Labor Law § 240(1) claim ( Romanczuk, 72 A.D.3d at 593, 899 N.Y.S.2d 228 ; Cardona v. New York City Hous. Auth., 153 A.D.3d 1179, 1180, 61 N.Y.S.3d 13 [1st Dept. 2017] ). Contrary to Turner and JVS's argument, the record does not reflect that plaintiff was instructed to use a harness (see Cardona, 153 A.D.3d at 1179, 61 N.Y.S.3d 13 ). Rather, the testimony they rely upon relates to an instruction plaintiff received at an entirely different project. Indeed, JVS's own witness conceded that the sidewalk bridge did not have a lifeline to attach a harness, testifying that "you don't usually have lifelines on top of a sidewalk bridge."
Triable issues as to whether JVS had the authority to control the activity that brought about plaintiff's alleged injury preclude summary dismissal of the Labor Law § 200 and common law negligence claims against Turner and JVS (see Voultepsis v. Gumley–Haft–Klierer, Inc., 60 A.D.3d 524, 525, 875 N.Y.S.2d 74 [1st Dept. 2009] ).
The court correctly dismissed JVS's contractual indemnity claim against Pofi, because Pofi did not expressly agree to indemnify JVS (see Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 490, 787 N.Y.S.2d 708, 821 N.E.2d 133 [2004] ; Nazario v. 222 Broadway, LLC, 135 A.D.3d 506, 510, 23 N.Y.S.3d 192 [1st Dept. 2016], mod on other grounds 28 N.Y.3d 1054, 43 N.Y.S.3d 251, 65 N.E.3d 1286 [2016] ). The only agreement between JVS and Pofi in effect at the time of plaintiff's accident was the May 2012 subcontract agreement. There is no contractual indemnity obligation contained in the May 2012 subcontract that requires Pofi to indemnify any party. That Pofi named JVS as an additional insured has no bearing on its obligation to indemnify JVS (see Kinney v. G.W. Lisk Co., 76 N.Y.2d 215, 218, 557 N.Y.S.2d 283, 556 N.E.2d 1090 [1990] ).
The court's dismissal of Turner and JVS's cross claims for contribution and common-law indemnification against Triborough while upholding plaintiff's negligence claims against Triborough, was premature (see Barraco v. First Lenox Terrace Assoc., 25 A.D.3d at 429, 810 N.Y.S.2d 8 ). Dismissal of the contribution claim deprives Turner and JVS of their right to recover a pro rata share of any damages awarded based on Triborough's liability (see Stone v. Williams, 64 N.Y.2d 639, 641, 485 N.Y.S.2d 42, 474 N.E.2d 250 [1984] ).
The court properly denied the renewal motion. The new evidence would not have changed the prior determination (see CPLR 2221[e][2] ; Prime Income Asset Mgt., Inc. v. American Real Estate Holdings L.P. , 82 A.D.3d 550, 551–552, 918 N.Y.S.2d 467 [1st Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2535253 [2011] ). Turner and JVS also failed to proffer a reasonable excuse for not submitting the new evidence on the prior motion ( CPLR 2221[e][3] ).