Opinion
06-07-2016
William MCCREA, et al., Plaintiffs–Respondents, v. ARNLIE REALTY COMPANY LLC, Defendant–Appellant, Arnar Purchasing Group Inc., Defendant. Arnlie Realty Company, L.L.C., Third–Party Plaintiff–Appellant, v. Brink Elevator Corp., Third–Party Defendant–Respondent, Union Elevator Corp., Third–Party Defendant.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. Jonathan D'Agostino & Associates, P.C., Staten Island (Glen Devora of counsel), for McCrea respondents. Chesney & Nicholas, LLP, Syosset (Marie I. Goutzounis of counsel), for Brink Elevator Corp., respondent.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant.
Jonathan D'Agostino & Associates, P.C., Staten Island (Glen Devora of counsel), for McCrea respondents.
Chesney & Nicholas, LLP, Syosset (Marie I. Goutzounis of counsel), for Brink Elevator Corp., respondent.
SWEENY, J.P., RENWICK, ANDRIAS, KAPNICK, KAHN, JJ.
Opinion Order, Supreme Court, New York County (Debra A. James, J.), entered August 11, 2015, which, insofar as appealed from as limited by the briefs, denied the motion of defendant Arnlie Realty Company LLC (Arnlie) for summary judgment dismissing the Labor Law §§ 240(1) and 200 claims, granted plaintiffs' cross motion for partial summary judgment on their Labor Law § 240(1) claim, granted the motion of third-party defendant Brink Elevator Corp. (Brink) for summary judgment dismissing Arnlie's common-law indemnification claim, and, upon a search of the record, granted plaintiffs partial summary judgment on their Labor Law § 200 claim, unanimously modified, on the law, to deny Brink's motion, and to vacate that part of the order granting plaintiffs partial summary judgment on the Labor Law § 200 claim, and otherwise affirmed, without costs.
Plaintiff William McCrea, an elevator repairman employed by Brink, was injured when an elevator fell on top of him inside a building owned by Arnlie. Because “workers ‘are scarcely in a position to protect themselves from accident[s]’ ” (Cherry v. Time Warner, Inc., 66 A.D.3d 233, 235, 885 N.Y.S.2d 28 [1st Dept.2009], quoting Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985], and Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 318, 83 N.E.2d 133 [1948] ), Labor Law § 240(1) is to be construed liberally in order to accomplish its intended purpose (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d at 521, 493 N.Y.S.2d 102, 482 N.E.2d 898 ; Cherry v. Time Warner, Inc., 66 A.D.3d at 235–236, 885 N.Y.S.2d 28 ).
The evidence here establishes that at the time of the accident, McCrea was engaged in “repair” work because the elevator's safety shoes were not operating properly, and the condition was an isolated event, unrelated to normal wear and tear (see Dos Santos v. Consolidated Edison of N.Y., Inc., 104 A.D.3d 606, 607, 963 N.Y.S.2d 12 [1st Dept.2013] ; Pieri v. B&B Welch Assoc., 74 A.D.3d 1727, 1728–1729, 904 N.Y.S.2d 595 [4th Dept.2010] ). In addition, the elevator was a “falling object” within the meaning of the Labor Law, even though it was not actually being hoisted or secured at the time of the accident, because it required securing for the purpose of McCrea's repair work (see Matthews v. 400 Fifth Realty LLC, 111 A.D.3d 405, 406, 974 N.Y.S.2d 370 [1st Dept.2013] ).
As plaintiff was engaged in activity protected by Labor Law § 240(1) at the time of the incident, Arnlie, as owner of the building, is subject to absolute liability for injuries which resulted from its failure to provide plaintiff with proper safety devices (Cherry v. Time Warner, Inc., 66 A.D.3d at 236, 885 N.Y.S.2d 28 ), without regard to the comparative fault of plaintiff (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991] ). Where the worker is the sole proximate cause of the injury, however, the premises owner will not be liable (Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554, 814 N.Y.S.2d 589, 847 N.E.2d 1162 [2006] ). “[T]o raise a triable issue of fact as to whether a plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew that they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained” (Quinones v. Olmstead Props., Inc., 133 A.D.3d 87, 89, 18 N.Y.S.3d 17 [1st Dept.2015], quoting Nacewicz v. Roman Catholic Church of the Holy Cross, 105 A.D.3d 402, 402–403, 963 N.Y.S.2d 14 [1st Dept.2013] ).
Here, there is no indication that plaintiff refused or misused available safety equipment. The record is devoid of evidence that plaintiff was aware of the “kill switch” located in the building superintendent's office, and it is uncontroverted that the superintendent failed to alert him to the location of the switch or remain on the premises while the repair was ongoing, as required by the service contract (cf. Quinones v. Olmstead Props., Inc., 133 A.D.3d at 89, 18 N.Y.S.3d 17 [triable issue of fact raised as to whether the plaintiff's conduct was sole proximate cause of accident where the “plaintiff was supplied with four safety devices and chose not to use any of them”] ). The comparative fault of plaintiff, if any, in proceeding with the repair after triggering the dual relay switches, which were the only safety devices of which he was aware, does not relieve Arnlie of its absolute liability under the statute. Thus, the court properly granted summary judgment to plaintiffs on the Labor Law § 240(1) claim.
The court properly denied Arnlie's motion for summary judgment dismissing the Labor Law § 200 claim because there are issues of fact as to whether Arnlie had supervisory control over the means and methods of McCrea's work (see Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 [1st Dept.2003] ). For the same reason, the record does not warrant the grant of partial summary judgment in favor of plaintiffs on the section 200 claim. Even though the service agreement between Arnlie and Brink provided that Arnlie would shut off the power to the elevator in the case of repair, there are triable issues as to whether the parties' course of conduct under this agreement waived or altered this provision (see Echevarria v. 158th St. Riverside Dr. Hous. Co., Inc., 113 A.D.3d 500, 501, 979 N.Y.S.2d 294 [1st Dept.2014] ). Plaintiffs also failed to conclusively establish that Arnlie or its “employees ever gave specific instructions to” McCrea (Francis v. Plaza Constr. Corp., 121 A.D.3d 427, 428, 994 N.Y.S.2d 74 [1st Dept.2014] ; compare Maza v. University Ave. Dev. Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149 [1st Dept.2004] ).
Furthermore, the court erred in dismissing Arnlie's common-law indemnification claim against Brink because there are issues of fact as to whether Brink purchased workers' compensation insurance for McCrea (see Workers' Compensation Law § 11 ; Boles v. Dormer Giant, Inc., 4 N.Y.3d 235, 240, 792 N.Y.S.2d 375, 825 N.E.2d 590 [2005] ), and as to whether Arnlie was negligent with respect to whether it actually exercised supervision or control over McCrea's work (see McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 377–378, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011] ).