Opinion
11636 Index 20953/17E
06-11-2020
Derek HEWITT, Plaintiff-Appellant-Respondent, v. NY 70TH STREET LLC, Defendant, Sweeney & Conroy Inc., Defendant-Respondent-Appellant, Structure Tech New York, Inc., Defendant-Respondent. Structure Tech New York, Inc., Third-Party Plaintiff-Respondent, v. Spring Scaffolding LLC, Third–Party Defendant–Respondent–Appellant.
Greenberg Law P.C., New York (Robert J. Menna of counsel), for appellant-respondent. Bartlett LLP, White Plains (David C. Zegarelli of counsel), for Sweeney & Conroy Inc., respondent-appellant. Pillinger Miller Tarallo, LLP, Elmsford (Michael Neri of counsel), for Spring Scaffolding LLC, respondent-appellant. Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for respondent.
Greenberg Law P.C., New York (Robert J. Menna of counsel), for appellant-respondent.
Bartlett LLP, White Plains (David C. Zegarelli of counsel), for Sweeney & Conroy Inc., respondent-appellant.
Pillinger Miller Tarallo, LLP, Elmsford (Michael Neri of counsel), for Spring Scaffolding LLC, respondent-appellant.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Kapnick, Kern, Oing, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 14, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability on his Labor Law §§ 200, 240(1), and 241(6) claims, granted those branches of defendant Sweeney & Conroy Inc.'s (Sweeney) cross motion which sought summary judgment dismissing plaintiff's Labor Law § 241(6) claim insofar as predicated on certain Industrial Code (12 NYCRR) regulations, and his Labor Law § 200 claim as against it, but denied those branches which were for summary judgment dismissing plaintiff's Labor Law § 241(6) claim insofar as predicated on certain other Industrial Code (12 NYCRR) regulations, and for unconditional summary judgment on its cross claim for contractual indemnification against defendant/third-party plaintiff Structure Tech New York, Inc. (Structure Tech), and denied third-party defendant Spring Scaffolding LLC's (Spring) cross motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to grant those branches of plaintiff's motion which were for summary judgment on the issue of liability on his Labor Law § 240(1) claim against Sweeney, and on his Labor Law § 200 and common-law negligence claims against Structure Tech, and to deny that branch of Sweeney's cross motion which was for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims as against it, and otherwise affirmed, without costs.
Sweeney, the general contractor, subcontracted with Structure Tech to perform exterior general construction work. Structure Tech, in turn, subcontracted with Spring, plaintiff's employer, to erect and dismantle scaffolding. Plaintiff's accident occurred when, while he was at ground level holding an I-beam that was being hoisted, a Structure Tech employee dislodged a metal baluster from the third-floor balcony railing, which fell and struck plaintiff in the head and face.
Plaintiff should have been awarded summary judgment on the issue of liability on his Labor Law § 240(1) claim as against Sweeney because there was no overhead protection provided to plaintiff ( Hill v. Acies Group, LLC et al., 122 A.D.3d 428, 996 N.Y.S.2d 235 [1st Dept. 2014] ). Thus even if, as Structure Tech's superintendent testified, plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident, this would at most constitute comparative negligence which is not a defense to a Labor Law § 240(1) claim ( id. ; see also Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993] ; Vasquez v. Cohen Bros. Realty Corp., 105 A.D.3d 595, 598, 963 N.Y.S.2d 626 [1st Dept. 2013] ; Luna v. Zoological Socy. of Buffalo, Inc., 101 A.D.3d 1745, 1746, 958 N.Y.S.2d 807 [4th Dept. 2012] ). Accordingly, the issue of Sweeney's liability under Labor Law § 241(6) is academic (see e.g. Saquicaray v. Consolidated Edison Co. of N.Y., Inc., 171 A.D.3d 416, 417, 96 N.Y.S.3d 215 [1st Dept. 2019] ; Berisha v. 209–219 Sullivan St. L.L.C., 156 A.D.3d 457, 458, 64 N.Y.S.3d 890 [1st Dept. 2017] ).
Plaintiff also should have been awarded summary judgment on his Labor Law § 200 and common-law negligence claims as against Structure Tech. As a subcontractor and, therefore, the statutory agent of the general contractor, Structure Tech may be held liable pursuant to Labor Law § 200 and under common-law negligence for injuries caused by a dangerous condition that it caused or created or of which it had actual or constructive notice ( DeMaria v. RBNB 20 Owner, LLC, 129 A.D.3d 623, 625, 12 N.Y.S.3d 79 [1st Dept. 2015] ; see Sledge v. S.M.S. Gen. Contrs., Inc., 151 A.D.3d 782, 783, 54 N.Y.S.3d 666 [2d Dept. 2017] ). Since no party disputes that a Structure Tech employee was responsible for dislodging the baluster and allowing it to fall and strike plaintiff, Structure Tech is liable to plaintiff under Labor Law § 200 and common-law negligence.
However, an issue of fact exists as to Sweeney's liability to plaintiff under these claims based on the testimony of Structure Tech's superintendent that it was, in fact, Sweeney's superintendent who instructed Structure Tech to cut the baluster that ultimately struck plaintiff. If credited, this testimony could support a finding that Sweeney actually exercised supervisory control over the worksite so as to trigger liability under these claims (see generally Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993] ; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ; Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012] ).
In view of the foregoing, the court properly awarded Sweeney only conditional summary judgment on its contractual indemnification claim against Structure Tech, i.e., subject to a determination as to their respective degrees of negligence (see e.g. Gonzalez v. G. Fazio Constr. Co., Inc., 176 A.D.3d 610, 611, 113 N.Y.S.3d 18 [1st Dept. 2019] ).
Finally, the court properly denied Spring's motion for summary judgment dismissing Structure Tech's third-party complaint against it. The testimony of Structure Tech's superintendent that plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident, if credited, could support a finding that plaintiff's accident and injuries arose from the performance of Spring's work and were caused by its negligent acts or omissions, thus triggering Spring's duty to indemnify Structure Tech under the terms of their agreement (see e.g. Ramirez v. Almah, LLC, 169 A.D.3d 508, 94 N.Y.S.3d 38 [1st Dept. 2019] ).