Opinion
2014-04-15
Brian HETTICH, Plaintiff–Appellant, v. 125 EAST 50TH STREET CO., LLC, et al., Defendants–Respondents. [And a Third–Party Action].
Proner & Proner, New York (Tobi R. Salottolo of counsel), for appellant. Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondents.
Proner & Proner, New York (Tobi R. Salottolo of counsel), for appellant.Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondents.
, J.P., ANDRIAS, RICHTER, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered October 1, 2012, which, to the extent appealed from, granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's motion for summary judgment on liability, unanimously modified, on the law, to deny defendants' motion, and otherwise affirmed, without costs.
Plaintiff was not injured by a dangerous condition that he had undertaken to fix ( see Wray v. 654 Madison Ave. Assoc., 253 A.D.2d 394, 677 N.Y.S.2d 129 [1st Dept.1998] ). He was working on the replacement of a controller for a dumbwaiter; he was injured when the dumbwaiter's hoist cable broke, causing the dumbwaiter (with plaintiff inside) to plunge 40 feet. The limited maintenance contract between defendants and plaintiff's employer, third-party defendant Nouveau Elevator Industries, Inc., included inspection of hoist cables, but it did not include replacement of a controller. Moreover, at Nouveau, maintenance and repair were separate departments, and plaintiff was not the regular maintenance mechanic whom Nouveau assigned to defendants' premises.
Nor was the ultimate cause of plaintiff's injury the manner of his work (i.e., climbing into the dumbwaiter and closing the door). The record shows that the breaking strength of the hoist cable was 4200 pounds and the combined weight of the dumbwaiter itself and plaintiff was 565 pounds. Thus, if the hoist cable had been functioning properly, it would not have snapped, even with plaintiff in the dumbwaiter. The ultimate cause of plaintiff's injury was a dangerous condition on defendants' property, namely, the malfunctioning hoist cable, and defendants may be held liable for plaintiff's injury under Labor Law § 200 and the common law if they either created or had notice of the dangerous condition ( Cordeiro v. TS Midtown Holdings, LLC, 87 A.D.3d 904, 906, 931 N.Y.S.2d 41 [1st Dept.2011];Bonura v. KWK Assoc., 2 A.D.3d 207, 207–208, 770 N.Y.S.2d 5 [1st Dept.2003] ). Issues of fact preclude summary judgment to either side. For example, there is conflicting evidence as to whether the old, failing hoist cable was actually replaced before plaintiff's accident ( see DiPilato v. H. Park Cent. Hotel, L.L.C., 17 A.D.3d 191, 192–193, 795 N.Y.S.2d 518 [1st Dept.2005] ).
Issues of fact also preclude summary judgment to either side on the Labor Law § 240(1) cause of action ( see Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 A.D.3d 494, 495, 980 N.Y.S.2d 6 [1st Dept.2014] ).
We have considered plaintiff's remaining contentions and find them unavailing.