Opinion
104923/09 16422 590471/11 590471/11 150641/12 16421.
12-15-2015
William J. HOWARD, Plaintiff–Respondent–Appellant, v. TURNER CONSTRUCTION COMPANY, et al., Defendants–Appellants–Respondents. Turner Construction Company, et al., Third–Party Plaintiffs–Respondents, v. High Rise Fire Protection Corporation, Third–Party Defendant–Appellant–Respondent. [And Other Third–Party Actions].
Thomas Torto, New York, for Turner Construction Company, A1 229 West 43rd Street Property Owner, LLC and CB Richard Ellis, Inc., appellants-respondents. Haworth Coleman & Gerstman, LLC, New York (Richard Barber of counsel), for High Rise Fire Protection Corporation, appellant-respondent. The Feld Law Firm, New York (John G. Korman and David L. Feld of counsel), for respondent-appellant.
Thomas Torto, New York, for Turner Construction Company, A1 229 West 43rd Street Property Owner, LLC and CB Richard Ellis, Inc., appellants-respondents.
Haworth Coleman & Gerstman, LLC, New York (Richard Barber of counsel), for High Rise Fire Protection Corporation, appellant-respondent.
The Feld Law Firm, New York (John G. Korman and David L. Feld of counsel), for respondent-appellant.
Opinion
Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 13, 2013, which granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim as against defendants Turner Construction Company (Turner) and AI 229 West 43rd Street Property Owner, LLC (AI 229) (collectively, defendants), unanimously affirmed, without costs. Order, same court and Justice, entered December 13, 2013, which, to the extent appealed from, denied so much of defendants' motion for summary judgment as sought to dismiss the Labor Law §§ 240(1) and 241(6) claims and third-party defendant High Rise Fire Protection Corporation's counterclaim for common-law indemnification as against them, and granted so much of the motion as sought to dismiss the Labor Law § 200 and common-law negligence claims as against them, unanimously modified, on the law, to grant defendants' motion as to High Rise's counterclaim, and otherwise affirmed, without costs.
Plaintiff's deposition testimony establishes that a proximate cause of his injury was his inability to open properly the 12– to 14–foot A-frame ladder from which he fell, because a pile of sheetrock was being stored on the floor where he was working (see Keenan v. Simon Prop. Group, Inc., 106 A.D.3d 586, 588, 966 N.Y.S.2d 378 1st Dept.2013 ). Thus, contrary to defendants' contention, plaintiff was not the sole proximate cause of his accident, and any negligence on his part in leaning an unopened A-frame ladder against the wall is not a defense to his Labor Law § 240(1) claim (Torres v. Monroe Coll., 12 A.D.3d 261, 785 N.Y.S.2d 57 1st Dept.2004 ). Nor does it avail defendants that the ladder was not defective, since it is undisputed that the ladder was “unsecured” (see e.g. McCarthy v. Turner Constr., Inc., 52 A.D.3d 333, 859 N.Y.S.2d 648 1st Dept.2008 ).
In view of the foregoing, plaintiff's Labor Law § 241(6) claim is academic (Jerez v. Tishman Constr. Corp. of N.Y., 118 A.D.3d 617, 989 N.Y.S.2d 465 1st Dept.2014 ).
Third-party defendant High Rise is not aggrieved by the dismissal of plaintiff's Labor Law § 200 and common-law negligence claims (see CPLR 5511).
Plaintiff's arguments in support of reinstating his Labor Law § 200 and common-law negligence claims are unpreserved for appellate review, since he failed to oppose the part of defendants' motion that sought summary dismissal of those claims (see Lally v. New York City Health & Hosps. Corp., 277 A.D.2d 9, 10, 716 N.Y.S.2d 295 1st Dept.2000, appeal dismissed 96 N.Y.2d 896, 730 N.Y.S.2d 792, 756 N.E.2d 80 2001 ). In any event, dismissal is warranted, since plaintiff's injury was caused by the manner and means of his work, including the equipment he used, and plaintiff was supervised solely by his employer's foreman. The daily presence of one of Turner's superintendents exercising “general supervisory authority at the work site” is insufficient to warrant the imposition of liability under Labor Law § 200 on Turner (Vaneer v. 993 Intervale Ave. Hous. Dev. Fund Corp., 5 A.D.3d 161, 163, 773 N.Y.S.2d 7 1st Dept.2004 ).
High Rise's counterclaim for common-law indemnification must be dismissed because, as indicated by the dismissal of plaintiff's Labor Law § 200 and common-law claims, there is no evidence that defendants were negligent or exercised actual supervision or control over the injury-producing work (Naughton v. City of New York, 94 A.D.3d 1, 10, 940 N.Y.S.2d 21 1st Dept.2012 ).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.