Opinion
July 28, 1994
Appeal from the Supreme Court, Albany County (Conway, J.).
Plaintiff James Kendall (hereinafter plaintiff) was one of three employees of third-party defendant, Ken Kam Corporation (hereinafter Ken Kam), working on the construction of a restaurant. He was injured in a fall when the scaffold platform on which he was working collapsed and he thereafter commenced this action against, among others, defendant Venture Development Inc., the general contractor. Plaintiff's single cause of action (his wife also has a derivative action), as amplified by his bill of particulars, asserts claims in both negligence and under Labor Law §§ 240 and 241. Venture in turn commenced a third-party action against Ken Kam, the subcontractor responsible for the scaffold and for the work that plaintiff was performing at the time of his injury, seeking both indemnification and contribution. Ken Kam moved for summary judgment contending that all of Ken Kam actions involved in the incident were performed by plaintiff or at his direction and under his supervision, and that the third-party action seeks to impute to Ken Kam the very same negligence upon which the culpable conduct defense against plaintiff is based. Supreme Court agreed and dismissed the third-party complaint, principally in reliance upon Ruszkowski v Sears, Roebuck Co. ( 188 A.D.2d 967, lv denied 82 N.Y.2d 654). Venture appeals.
Plaintiff is the sole shareholder of Ken Kam. Nevertheless, Ken Kam, as a corporation, has a distinct and separate existence apart from plaintiff and his multiple roles (cf., Rose v. Mount Ebo Assocs., 170 A.D.2d 766, 768-769; see also, Gatley v. Deters, 128 Misc.2d 209). Plaintiff's ownership of Ken Kam is irrelevant to this action.
We reverse. Initially, the rules of apportionment of liability as recast by Dole v. Dow Chem. Co. ( 30 N.Y.2d 143) did not alter or detract from the right of one held to be only vicariously liable to obtain full indemnification from the party solely responsible for the accident (see, Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 6; Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 564-566). Since Rogers v. Dorchester Assocs. (supra) formed the basis for the decision in Ruszkowski v. Sears, Roebuck Co. (supra) and Lachhonna v. Consolidated Edison Co. ( 170 A.D.2d 191), upon which Ruszkowski is premised, Venture's indemnification claim should not have been dismissed.
Both Ruszkowski v. Sears, Roebuck Co. (supra) and Lachhonna v. Consolidated Edison Co. (supra) involved contribution claims.
Venture has stated an affirmative defense which alleges: "The accident and injuries were caused in whole or in part by the contributory negligence, assumption of risk or other culpable conduct of plaintiff or others [over] whom defendant had no control." The case of Ruszkowski v. Sears, Roebuck Co. (supra) precludes a third-party plaintiff from seeking to impute to a plaintiff's employer the very same negligence upon which a defense of his own culpable conduct is based. Here, however, there is no culpable conduct defense to that aspect of plaintiff's claim involving Labor Law § 240 (see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 520-521; Sulem v B.T.R.E. Greenbush, 187 A.D.2d 816, 817; Conway v. New York State Teachers' Retirement Sys., 141 A.D.2d 957, 958), and accordingly Ruszkowski v. Sears, Roebuck Co. (supra) does not apply (see, Torrillo v. Kiperman, 183 A.D.2d 821, 822).
The principle articulated in Ruszkowski v. Sears, Roebuck Co. (supra) and Lachhonna v. Consolidated Edison Co. (supra) prevents a double counting of imputed culpable conduct in both a contributory negligence defense against an employee-plaintiff and a comparative negligence claim for contribution for the exact same acts against the employer based upon the doctrine of respondeat superior. Such double counting is not involved here, where the absolute liability of both the contractor and the subcontractor is based on their nondelegable duties under Labor Law § 240.
Wholly separate, the record reflects an unresolved factual issue as to which employee's acts or failures resulted in the collapse of Ken Kam's scaffold. While plaintiff's negligent supervision can be imputed to Ken Kam under the doctrine of respondeat superior, this doctrine does not impose upon plaintiff, as supervisor, liability for negligent acts of other Ken Kam employees (see, Connell v. Hayden, 83 A.D.2d 30, 50-51). Their acts and failures are imputed to the corporate employer, Ken Kam. Since the relative roles of Ken Kam's three employees in the scaffold failure remain unresolved, summary judgment on that portion of the claims involving a valid culpable conduct affirmative defense against plaintiff's negligence and Labor Law § 241 causes of action was error (see, Torrillo v. Kiperman, supra).
Cardona, P.J., White, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.